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Title: A History of Matrimonial Institutions, Volume 3 (of 3)
Author: Howard, George Elliott
Language: English
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A HISTORY OF
MATRIMONIAL INSTITUTIONS
A HISTORY OF
MATRIMONIAL INSTITUTIONS
CHIEFLY IN ENGLAND AND THE UNITED STATES WITH AN INTRODUCTORY
ANALYSIS OF THE LITERATURE AND THE
THEORIES OF PRIMITIVE MARRIAGE
AND THE FAMILY
BY
GEORGE ELLIOTT HOWARD PH.D.
PROFESSORIAL LECTURER IN THE UNIVERSITY OF CHICAGO AUTHOR OF "LOCAL
CONSTITUTIONAL HISTORY OF THE UNITED STATES"
VOLUME THREE
CHICAGO
THE UNIVERSITY OF CHICAGO PRESS
CALLAGHAN & COMPANY
LONDON
T. FISHER UNWIN, PATERNOSTER SQUARE
1904
COPYRIGHT 1904
THE UNIVERSITY OF CHICAGO
Entered at Stationers' Hall
MAY, 1904
TO
Alice Frost Howard
HER HUSBAND DEDICATES THIS BOOK IN
GRATEFUL RECOGNITION OF HER
AID IN MAKING IT
ANALYTICAL TABLE OF CONTENTS
VOLUME ONE
PART I
ANALYSIS OF THE LITERATURE AND THE THEORIES OF PRIMITIVE
MATRIMONIAL INSTITUTIONS
PAGES
CHAPTER I. THE PATRIARCHAL THEORY 3-32
I. Statement of the Theory 9-13
II. Criticism of the Theory by Spencer and McLennan 14-17
III. The Theory in the Light of Recent Research 18-32
CHAPTER II. THEORY OF THE HORDE AND MOTHER-RIGHT 33-89
I. Bachofen and His Disciples 39-65
II. Morgan's Constructive Theory 65-76
III. McLennan's Constructive Theory 77-89
CHAPTER III. THEORY OF THE ORIGINAL PAIRING OR
MONOGAMOUS FAMILY 89-151
I. The Problem of Promiscuity 90-110
II. The Problem of Mother-Right 110-117
III. The Problem of Exogamy 117-132
IV. The Problem of the Successive Forms of the Family 132-151
CHAPTER IV. RISE OF THE MARRIAGE CONTRACT 152-223
I. Wife-Capture and the Symbol of Rape 156-179
II. Wife-Purchase and Its Survival in the Marriage
Ceremony 179-201
III. The Antiquity of Self-Betrothal or Free Marriage 201-210
IV. Primitive Free Marriage Surviving with Purchase,
and the Decay of the Purchase-Contract 210-223
CHAPTER V. EARLY HISTORY OF DIVORCE 224-250
I. The Right of Divorce 224-240
II. The Form of Divorce 240-241
III. The Legal Effects of Divorce 241-247
IV. Frequency of Divorce 247-250
PART II
MATRIMONIAL INSTITUTIONS IN ENGLAND
CHAPTER VI. OLD ENGLISH WIFE-PURCHASE YIELDS TO
FREE MARRIAGE 253-286
I. The Primitive Real Contract of Sale and Its
Modifications 258-276
II. Rise of Free Marriage: Self-_Beweddung_ and
Self-_Gifta_ 276-286
CHAPTER VII. RISE OF ECCLESIASTICAL MARRIAGE: THE
CHURCH ACCEPTS THE LAY CONTRACT AND CEREMONIAL 287-320
I. The Primitive Christian Benediction, the Bride-Mass,
and the Celebration _ad Ostium Ecclesiae_ 291-308
II. The Priest Supersedes the Chosen Guardian, and
_Sponsalia per Verba de Praesenti_ Are Valid 308-320
CHAPTER VIII. RISE OF ECCLESIASTICAL MARRIAGE: THE
CHURCH DEVELOPS AND ADMINISTERS MATRIMONIAL
LAW 321-363
I. The Early Christian Doctrine and the Rise of the
Canonical Theory 324-340
II. Clandestine Marriages the Fruit of the Canonical
Theory 340-349
III. The Evils of the Spiritual Jurisdiction 351-359
IV. Publicity Sought through Banns and Registration 359-363
CHAPTER IX. THE PROTESTANT CONCEPTION OF MARRIAGE 364-403
I. As to the Form of Marriage 370-386
II. As to the Nature of Marriage 386-399
III. Child-Marriages in the Age of Elizabeth 399-403
CHAPTER X. RISE OF CIVIL MARRIAGE 404-473
I. Cromwell's Civil Marriage Act, 1653 408-435
II. Fleet Marriages and the Hardwicke Act, 1753 435-460
III. The Present English Law 460-473
VOLUME TWO
PART II--_Continued_
CHAPTER XI. HISTORY OF SEPARATION AND DIVORCE UNDER
ENGLISH AND ECCLESIASTICAL LAW 3-117
I. The Early Christian Doctrine and the Theory of
the Canon Law 11-60
_a_) Historical Elements of the Christian Teaching 11-23
_b_) Views of the Early Fathers 23-28
_c_) The Legislation of the Christian Emperors 28-33
_d_) The Compromise with German Custom 33-46
_e_) Final Settlement of the Christian Doctrine in
the Canon Law 47-60
II. The Protestant Doctrine of Divorce 60-85
_a_) Opinions of Luther and the Continental Reformers 60-71
_b_) Opinions of the English Reformers 71-85
III. Law and Theory during Three Centuries 85-117
_a_) The Views of Milton 85-92
_b_) Void and Voidable Contracts 92-102
_c_) Parliamentary Divorce 102-109
_d_) The Present English Law 109-117
PART III
MATRIMONIAL INSTITUTIONS IN THE UNITED STATES
CHAPTER XII. OBLIGATORY CIVIL MARRIAGE IN THE NEW
ENGLAND COLONIES 121-226
I. The Magistrate Supersedes the Priest at the
Nuptials 125-143
II. Banns, Consent, and Registration 143-151
III. Courtship, Proposals, and Government of Single
Persons 152-169
IV. Pre-contracts, Bundling, and Sexual Immorality 169-200
V. Breach of Promise and Marriage Portions 200-209
VI. Self-_Gifta_, Clandestine Contracts, and Forbidden
Degrees 209-215
VII. Slave-Marriages 215-226
CHAPTER XIII. ECCLESIASTICAL RITES AND THE RISE OF
CIVIL MARRIAGE IN THE SOUTHERN COLONIES 227-263
I. The Religious Ceremony and Lay Administration
in Virginia 228-239
II. Optional Civil Marriage and the Rise of Obligatory
Religious Celebration in Maryland 239-247
III. The Struggle for Civil Marriage and Free
Religious Celebration in North Carolina 247-259
IV. Episcopal Rites by Law and Free Civil or Religious
Celebration by Custom in South Carolina and
Georgia 260-263
CHAPTER XIV. OPTIONAL CIVIL OR ECCLESIASTICAL MARRIAGE
IN THE MIDDLE COLONIES 264-327
I. New York 266-308
_a_) Law and Custom in New Netherland 267-284
_b_) Law and Custom under the Duke of York 284-296
_c_) Law and Custom in the Royal Province 296-308
II. New Jersey, Pennsylvania, and Delaware 308-327
_a_) Law and Custom in New Jersey 308-315
_b_) Law and Custom in Pennsylvania and Delaware 315-327
CHAPTER XV. DIVORCE IN THE AMERICAN COLONIES 328-387
I. In New England 330-366
_a_) Massachusetts 330-348
_b_) New Hampshire, Plymouth, and New Haven 348-353
_c_) Connecticut 353-360
_d_) Rhode Island 360-366
II. English Divorce Laws in Abeyance in the Southern
Colonies 366-376
Arbitration and Divorce in the Middle Colonies 376-387
CHAPTER XVI. A CENTURY AND A QUARTER OF MARRIAGE
LEGISLATION IN THE UNITED STATES, 1776-1903 388-497
I. The New England States 388-408
_a_) Solemnization 389-395
_b_) Forbidden Degrees: Void and Voidable Marriages 395-401
_c_) Certificate and Record 401-408
II. The Southern and Southwestern States 408-452
_a_) Solemnization 409-427
_b_) Forbidden Degrees: Void and Voidable Marriages 427-441
_c_) Certificate and Record 441-452
III. The Middle and the Western States 452-497
_a_) Solemnization 452-470
_b_) Forbidden Degrees: Void and Voidable Marriages 470-481
_c_) Certificate and Record 481-497
VOLUME THREE
PART III--_Continued_
CHAPTER XVII. A CENTURY AND A QUARTER OF DIVORCE
LEGISLATION IN THE UNITED STATES 3-160
I. The New England States 3-30
_a_) Jurisdiction: Causes and Kinds of Divorce 4-18
_b_) Remarriage, Residence, Notice, and Miscellaneous
Provisions 18-28
_c_) Alimony, Property, and Custody of Children 28-30
II. The Southern and Southwestern States 31-95
_a_) Legislative Divorce 31-50
_b_) Judicial Divorce: Jurisdiction, Kinds, and Causes 50-79
_c_) Remarriage, Residence, Notice, and Miscellaneous
Provisions 79-90
_d_) Alimony, Property, and Custody of Children 90-95
III. The Middle and the Western States 96-160
_a_) Legislative Divorce 96-101
_b_) Judicial Divorce: Jurisdiction, Kinds, and Causes 101-144
_c_) Remarriage, Residence, Notice, and Miscellaneous
Provisions 145-160
CHAPTER XVIII. PROBLEMS OF MARRIAGE AND THE FAMILY 161-259
I. The Function of Legislation 167-223
_a_) The Statutes and the Common-Law Marriage 170-185
_b_) Resulting Character of Matrimonial Legislation 185-203
_c_) Resulting Character of Divorce Legislation 203-223
II. The Function of Education 223-259
BIBLIOGRAPHICAL INDEX 263-402
I. Early History of Matrimonial Institutions 264-291
II. Matrimonial Institutions in England and under
Germanic and Canon Law 291-339
III. Matrimonial Institutions in the United States 339-355
_a_) Manuscripts 339-340
_b_) Books and Articles 340-355
IV. Problems of Marriage and the Family 355-396
V. Session Laws and Collected Statutes Used in Chapters
XVI-XVIII 396-402
CASE INDEX 405-411
SUBJECT INDEX 413-449
PART III
MATRIMONIAL INSTITUTIONS IN THE UNITED STATES
CONTINUED
CHAPTER XVII
A CENTURY AND A QUARTER OF DIVORCE LEGISLATION IN THE UNITED STATES,
1776-1903
[BIBLIOGRAPHICAL NOTE XVII.--The session laws and compilations
used in the preparation of this chapter are the same as those
mentioned in Bibliographical Note XVI; and they are listed in
the Bibliographical Index, V. The entire body of divorce laws
enacted in each of the states and territories since 1775 has
been examined. Among the decisions cited the most important are
West Cambridge _v._ Lexington (October, 1823), 1 Pickering,
_Mass. Reports_, 507-12; Putnam _v._ Putnam (September, 1829),
8 Pickering, _Mass. Reports_, 433-35; Desaussure's comments on
the case of Vaigneur _v._ Kirk (1808), 2 _South Carolina Equity
Reports_, 644-46; Justice Pope's opinion in McCrery _v._ Davis
(1894), 44 _South Carolina Reports_, 195-227; Justice Nisbet's
opinion in Head _v._ Head, 2 _Georgia Reports_ (1847), 191-211;
Van Voorhis _v._ Brintnall, 86 _New York Reports_ (1881), 18;
Willey _v._ Willey, 22 _Washington Reports_ (1900), 115-21; and
Estate of Wood, 137 _California Reports_ (1902), 129 ff.
For summaries of the divorce laws of the states at different
periods see Lloyd, _Treatise on the Law of Divorce_ (Boston and
New York, 1887); Hirsh, _Tabulated Digest of the Divorce Laws of
the U. S._ (New York, 1888; new ed., 1901); Stimson, _American
Statute Law_ (Boston, 1886), I, 682-715; Fairbanks, _The
Divorce Laws of Mass._ (Boston, 1887); Neubauer, "Ehescheidung
im Auslande," in _ZVR._, VIII, 278-316; IX, 160-74 (Stuttgart,
1889-91); Woolsey, _Divorce and Divorce Legislation_ (2d ed.,
New York, 1882); and compare the works of Vanness, Noble,
Convers, Snyder, Ernst, and Whitney mentioned in Bibliographical
Note XVI. Whitmore has a helpful article on "Statutory
Restraints on the Marriage of Divorced Persons," in _Central Law
Journal_, LVII, 444-49 (St. Louis, 1903). Consult the literature
described in Bibliographical Note XVIII.]
I. THE NEW ENGLAND STATES
During the colonial era the broad outlines and essential principles
of the American divorce law, as it still exists in the various
states, had already taken form. Long before the Revolution it was
predetermined that a free and tolerant policy in this regard must
prevail in the United States. The 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 twenty-five 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
statute-maker, 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."[1] 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 thoro_ may be granted.[2] 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.[3] 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.[4]
[1] _Const. of Mass._ (1780), chap. 3.
[2] 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.
[3] _Laws of the Commonwealth of Mass., 1780-1816_ (1807-16), I,
303.
[4] Act of May 31, 1887: _Supp. to the Pub. Stat. of the Com. of
Mass., 1882-88_ (1890), 584, 585.
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."[5] 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;"[6] and this is typical of the tendency in other states[7]
to adopt what is now the prevailing usage.[8]
[5] 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.
[6] "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 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.
[7] 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).
[8] 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.
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.[9] But in 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."[10] 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 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_."[11] No further important change[12] in the law appears to
have been made before 1870, when divorce from bed and board was
abolished.[13]
[9] 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.
[10] Act of Feb. 28, 1811: _ibid._, IV, 223.
[11] Act of Feb. 18, 1829: _Laws of the Com. of Mass., 1828-31_
(1831), 83, 84.
[12] The causes of divorce _a mensa et thoro_ remain unaltered in
_Rev. Stat. of the Com. of Mass., 1835_ (1836), 480.
[13] _Supp. to Gen. Stat. of the Com. of Mass., 1860-72_, I (2d
ed., Boston, 1873), 871 (act of June 23, 1870).
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.[14] Utter and wilful desertion for a
term of five years came next in 1838;[15] 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 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."[16]
[14] _Rev. Stat._ (1836), 480. Impotency is also sanctioned; but
this was already allowed by the act of 1786.
[15] Act of April 17, 1838: _Laws of the Com. of Mass._ (1838),
415.
[16] Act of March 20, 1850: _Supp. to Rev. Stat., 1836-53_, I,
592.
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.[17] It will be observed that
there is no express provision for "intervention," as in England by
a private citizen or the Queen's proctor.[18] 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 it would be useless to dwell upon,
even if the import of some of them could readily be understood.[19]
After thirty years of tinkering and experiment, the law now stands
in substance about as it was first made. By the act of May 2, 1893,
all decrees of divorce are in the first instance to be decrees
_nisi_, without further proceedings "to become absolute after the
expiration of six months;" unless the court on the application of
some interested person otherwise orders.[20] The requirement of
publication in the newspapers at the expense of the petitioner is
not retained.
[17] 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.
[18] See above chap. xi, sec. iii, _d_).
[19] So by an act of 1870 the decree _nisi_ _may_ in three years
and _shall_ in five years be made absolute, upon proof of the
parties living separate during the period; if they live together,
the decree _nisi_ becomes void: _Supp. to Gen. Stat., 1860-72_,
I, 871. This act was repealed in 1873: _Supp. to Gen. Stat.,
1873-77_, II, 104; but the interval in case of a decree for
desertion was then fixed at three years: _ibid._, 104. In the
next year the act of 1867 was amended by adding, "but a decree
of divorce when personal service is made on the libellee, or
when the libel for divorce shall have been entered at a term
prior to the term granting a decree of divorce, shall be a decree
absolute, and not _nisi_": _ibid._, II, 306 (June 30, 1874). On
May 19, 1875, the interval fixed by the law of 1870 was restored:
three years on petition of the libellant; five years on petition
of either party: _ibid._, II, 364. But in 1881 it was again made
six months on the petition of either party: _Acts and Resolves_
(1881), 563. The next year the law was slightly modified in the
details of procedure, the six months' interval being retained:
_ibid._ (1882), 178, 179; amending chap. 146, _Pub. Stat. of the
Com. of Mass._ (1882), 813, 815.
[20] Act of May 2, 1893: _Acts and Resolves_ (1893), 916,
amending slightly another act of the same year: _ibid._, 829,
830. _Cf._ _Rev. Laws_ (1902), II, 1355.
The introduction of the decree _nisi_ in 1867, and the abrogation of
the decree from bed and board in 1870, led at once to an extension
of the causes of divorce from the bond of marriage. In addition
to the five grounds already existing, a statute of the last-named
year authorizes a full divorce for "extreme cruelty," "gross and
confirmed habits of intoxication contracted after marriage," or
"cruel or abusive treatment by either of the parties," and "on the
libel of the wife, when the husband, being of sufficient ability,
grossly or wantonly and cruelly refuses or neglects to provide
suitable maintenance for her." Several of these causes, it will be
noticed, had already existed as grounds for separation from bed and
board, and were now merely transferred to full divorce. "Utter
desertion," first allowed in 1838, likewise appears in this act as a
new cause; but it is so only for the reason that all limitation as
to the term of desertion is now omitted.[21] But in 1873 the period
was fixed at three years,[22] and this term is retained in the
present law.[23] Finally in 1889 dissolution of wedlock is granted
for "gross and confirmed drunkenness" caused "by the voluntary and
excessive use of opium or other drugs."[24] By the omission of one,
the modification and combination of others, these ten causes have
now been reduced to seven. By the present law a full divorce, to
be a decree _nisi_ in the first instance, may be granted for (1)
adultery; (2) impotency; (3) utter desertion for three years; (4)
gross and confirmed habits of intoxication caused by the voluntary
and excessive use of intoxicating liquors, opium, or other drugs;
(5) cruel and abusive treatment; (6) on the libel of the wife, if
the husband, being of sufficient ability, grossly or wantonly and
cruelly refuses or neglects to provide suitable maintenance for her;
(7) when either spouse has been sentenced to confinement at hard
labor for life or for five years or more.[25]
[21] _Supp. to Gen. Stat. of the Com. of Mass., 1860-72_, I, 871.
[22] Act of June 11, 1873: _Acts and Resolves_ (1873), 908.
[23] _Pub. Stat. of the Com. of Mass._ (Boston, 1882), 813.
[24] Act of June 7, 1889: _Acts and Resolves_ (1889), 1172.
[25] _Rev. Laws_ (1902), II, 1352, 1353. Divorce for joining a
religious sect, under the act of 1850, seems to have been dropped
out in the revision. It is still in _Pub. Stat._ (1882), 813.
The century's legislation in the other New England states regarding
the causes of divorce shows important differences in details and
in the rate of progress; but the general tendency and the final
result are much the same. For a short period previous to 1784
the legislature of New Hampshire exercised the right of granting
divorces from the marriage bond.[26] The constitution of that
year, following the example of Massachusetts, put a stop to the
practice.[27] So by the act of February 17, 1791, which determined
the general character of the divorce laws of that state for half a
century, jurisdiction is vested in the superior court of judicature,
where, under sanction of the constitution[28] of 1792, it remained
until 1855, when it was transferred to the supreme court.[29] In the
outset the laws of New Hampshire are more liberal in this regard
than those of Massachusetts, and the development is more rapid.
By the act of 1791, just mentioned, a divorce _a vinculo_ may be
granted for the impotency, adultery, extreme cruelty, or three
years' absence of either spouse; and to the wife when the husband
wilfully abandons her for three years, refusing to provide.[30]
But, it should be observed, separation from bed and board is not
recognized. This law stood unaltered until 1839, when, in addition
to the causes already assigned, a divorce is authorized for three
years' wilful desertion or refusal to cohabit by either person, if
the cause continues at the time of petition.[31]
[26] See the _Index to the MSS. Laws of New Hampshire Recorded
in the Office of the Secretary of State, 1679-1883_ (1886), 149,
150, where a list is given showing that legislative decrees were
granted in 1766, 1771, 1773, 1778, 1779, 1780, 1781, 1782, and
1783.
[27] See the provision in POORE, _Charters_, II, 1290.
[28] It is by that constitution left in the hands of the superior
court until the legislature shall make provision: POORE,
_Charters_, II, 1305; also in _Const. and Laws of the State of N.
H._ (1805), 18.
[29] See _Laws of N. H._ (1855), 1542; also _Gen. Stat._ (1867),
386; _Gen. Laws_ (1878), 432, 433; _Pub. Stat._ (1891), 573.
[30] _Laws of the State of N. H._ (1797), 295.
[31] _Laws of N. H._ (1839, act of July 6), 400. This act was
amended in 1840 so that the divorce may be given within three
months after passage of the act, provided the whole time of
desertion before and after shall not be less than three years:
_Laws of N. H._ (1840, June 19), 439, 440.
The next year a broad step in advance was taken. In addition to
the existing causes, five[32] new and important grounds were at
once introduced. A divorce may be granted in favor of the "innocent
party" when the other is convicted and actually imprisoned for a
felony; or becomes a habitual drunkard and so continues for three
years; or "so treats the other, as seriously to injure health, or
endanger reason;" or "when the conduct of either party shall be so
gross, wicked and repugnant to the marriage covenant, as to occasion
the separation of the other for the space of three years."[33] This
last clause is omitted from the revised statutes of 1842. But among
the twelve grounds there enumerated two new ones appear. As by the
Massachusetts law of 1850, divorce is now granted either person
when the other joins and remains three years with a religious sect
or society "professing to believe the relation of husband and wife
unlawful;" or to the "wife of any alien or citizen of another state,
living separate," when she has resided in the commonwealth three
years, the husband "having left the United States with the intention
of becoming a citizen of some foreign country, and not having during
that time" returned to "claim his marital rights," nor having made
suitable provision for her support.[34] With the subsequent addition
of two more causes the tale is complete. Since 1854 any "citizen"
may claim a divorce when without his consent the wife willingly
absents herself "for three years together;" or when in like manner
she has "gone to reside beyond the limits" of the state and there
remained ten years together without returning to claim her marriage
rights.[35] These fourteen general grounds of divorce still appear
in the statute-book;[36] but it should be noted that not less than
seven of them have to do with absence or desertion of one or the
other of the persons under various conditions.
[32] Counting divorce for injury to health or endangering reason
as two grounds, as in the _Rev. Stat._ (1842), 293.
[33] _Laws of N. H._ (1840, November), 488, 489. In the case of
habitual drunkenness and of gross and wicked conduct not more
than two of the three years may precede the passage of the act.
[34] _Rev. Stat. of the State of N. H._ (1843), 293. In these
cases the time may be counted before and after the act, or if the
three years have already expired, then a divorce may be granted
in one month after it goes into force: _ibid._, 293, 294. The
period for joining a religious sect was reduced to six months by
the act of Jan. 4, 1849: _Laws of N. H._ (1848-49), 707; _Comp.
Stat._ (1853), 377.
[35] _Laws of N. H._ (1854), 1424, 1425; also _Gen. Stat. of the
State of N. H._ (1867), 335.
[36] They are still in force in _Pub. Stat._ (1900), 591. To
constitute a cause there must now be conviction for a "crime"
punishable in the state by more than one year's imprisonment; and
there must be actual confinement under the sentence.
At the close of the colonial era and until 1850, it will be
remembered,[37] the legislature of Connecticut continued to grant
divorces on various grounds; but jurisdiction in most cases was
exercised by the superior court,[38] where it still remains.[39]
Legislative divorce is not prohibited by the constitution; and it
appears to be still permitted by the law. A recent act provides
that "whenever any petition for divorce shall have been referred
to any committee of the general assembly, such committee may give
to the attorney general reasonable notice of all hearings on such
petition, and he shall thereupon take such action as he shall deem
to be just and equitable in the premises, and he shall appear before
such committee ... whenever in his opinion justice so requires."[40]
Since 1667, as elsewhere seen, divorce from the bond of wedlock had
been granted for adultery, fraudulent contract, wilful desertion for
three years, and for seven years' absence without word. To these
grounds, in 1843, "habitual intemperance" and "intolerable cruelty"
were added.[41] Three more new causes followed in 1849. Divorce was
then sanctioned for sentence to imprisonment for life; "infamous
crime involving a violation of conjugal duty;" and for "any such
misconduct ... as permanently destroys the happiness of the
petitioner, and defeats the purpose of the marriage relation."[42]
The remarkable "omnibus" clause last quoted was not repealed until
1878.[43] The number of causes was thus reduced to eight, and
thereafter no further changes seem to have been made.[44]
[37] See chap. XV, sec. i, _c_).
[38] So in the _Acts and Laws of his Majesty's Colony of Conn._
(1750), 43; in _Acts and Laws_ (1784), 41; _ibid._ (1805), 457;
the _Pub. Stat. Laws_ (1821), 178, 179; _ibid._ (1835), 162, 163;
_ibid._ (1838), 185, 186; _Pub. Acts_ (1849), 17.
[39] _Gen. Stat. of Conn._ (1887), 612.
[40] Act of March 21, 1899: _Pub. Acts_, 996.
[41] _Pub. Acts_ (1843), 20; _Rev. Stat._ (1849), 274. For a
construction of "intolerable cruelty" see Shaw _v._ Shaw, 17
_Conn. Reports_, 189.
[42] _Pub. Acts_ (1849), 17 (June 19). _Cf._ _Gen. Stat._ (1866),
305, 306, where the nine causes already existing in 1849 are
enumerated; also _ibid._ (1875), 188.
[43] _Pub. Acts_ (1878), 305.
[44] The eight causes already named appear in _Gen. Stat._
(1887), 612; and no later action seems to have been taken. _Cf._
_Gen. Stat._ (1902), 1090, 1091.
Throughout the century the supreme court of Rhode Island has
exercised jurisdiction in cases of divorce and alimony,[45] although
until 1851, as elsewhere explained, the legislature retained a share
in this power. At the beginning of the period a marriage might be
dissolved for (1) impotency, (2) adultery, (3) extreme cruelty,
(4) wilful desertion for five years, (5) the husband's neglect or
refusal to provide, or (6) for any other "gross misbehaviour and
wickedness in either of the parties, repugnant to and in violation
of the marriage covenant."[46] The last clause is surely broad
enough, and no further ground of separation was found necessary
until 1844. In that year (7) "continued drunkenness" is added.[47]
Seven years later the court is given discretionary power to dispense
with proof of full five years' desertion and to grant relief in less
time.[48] Finally the extreme limit of modern legislation is reached
in allowing (8) a decree when either spouse is guilty of "habitual,
excessive, and intemperate use of opium, morphine, or chloral."[49]
In 1902 the fifth cause in the above series was modified, a full
divorce being then authorized for the husband's neglect _and_
refusal to provide his wife with necessaries for at least one
year.[50] So the century, which began with six grounds, ends with
but two new causes for the dissolution of wedlock. In the meantime,
however, we have a rare example of reactionary legislation. In 1882
the policy of nearly two hundred and fifty years was reversed.[51]
It was then provided that in future "divorce from bed, board, and
cohabitation, until the parties be reconciled, may be granted for
any of the causes for which by law a divorce from the bond of
marriage may be decreed, and for such other causes as may seem to
require the same."[52] This sweeping provision is still in force.[53]
[45] So in 1798: _Pub. Laws of R. I._ (1798), 481. See also _Gen.
Laws_ (1896), 760, 761, where exclusive jurisdiction in such
cases is vested in the appellate division of the supreme court.
[46] _Pub. Laws_ (1798), 479.
[47] _Pub. Laws_ (1844), 263. But this provision may be earlier;
I have not been able to verify the date.
[48] _Laws of R. I._ (1851), 796.
[49] _Gen. Laws_ (1896), 634. Eight causes are here formally
enumerated; but the act further declares that when it is alleged
in the petition that the parties have lived apart from each other
for at least ten years, the court may in its discretion grant a
divorce: _ibid._, 634. This provision originated in 1893: _Acts
and Resolves_ (1892-93), 237.
[50] _Pub. Laws_ (1902), 39-41.
[51] For the rare cases of permission to live "apart" granted by
the legislature cannot be regarded as historically important.
[52] _Pub. Stat._ (1882), 427.
[53] _Gen. Law_ (1896), 634, 635; _Pub. Laws_ (1902), 39. This
act of 1902 allows such separation, provided the petitioner has
been a domiciled inhabitant of the state and has resided there
for such length of time as the court shall deem sufficient.
The first word in the history of divorce legislation for Vermont
appears in the records of the "assumption" period. In 1779 the
"representatives of the freemen" authorize the superior court to
grant dissolution of the bond of marriage for the same four causes
allowed at that time by the Connecticut laws, but by implication
only the aggrieved person is permitted to remarry.[54] This
restriction does not appear in the statutes enacted after the
attainment of statehood. By these the supreme court may grant either
spouse a decree for impotence, adultery, intolerable severity,
three years' wilful desertion with total neglect of duty, or for
the usual term of long absence unheard of.[55] The same grounds
are retained in 1805, but with one important modification. In the
case of "intolerable severity" it is left optional with the court
whether the decree shall be from bed and board or from the marriage
bond.[56] This provision, however, was short-lived, for it seems to
have been repealed in 1807.[57] The number of causes of divorce _a
vinculo_ in 1839 has increased to six, but one old ground--impotence
has given place to two new ones--actual confinement on a criminal
sentence for three years or more, and gross, wanton, and cruel
neglect of the husband to provide when he is able.[58] By the
existing law the same six causes are expressly recognized.[59] But
the statute contemplates divorce on still other grounds; for it is
provided that libels for causes other than those named shall be
tried in the county where the persons or one of them resides.[60]
The last word of the period is retrogressive, decrees from bed and
board being restored after an interval of almost exactly one hundred
years. By the act of November 24, 1896, such separations, "forever
or for a limited time," are authorized, as in Rhode Island, "for any
of the causes for which a divorce from the bond of matrimony may
be declared."[61] Jurisdiction is now vested in the county courts,
each held by an assigned judge of the supreme court, who may try
questions of fact as well as of law.[62]
[54] SLADE, _Vermont State Papers_, including laws enacted
1779-86 (1823), 364.
[55] _Laws of the State of Vermont_ (1798), 333.
[56] Act of Nov. 7, 1805: _Laws of the State of Vt._ (1808), I,
270-72.
[57] It appears to have been abrogated by sec. 3 of the act of
Oct. 21, 1807: see _Laws of Vt._ (1825), 364, 365, note.
Very naturally the first divorce legislation of Maine is based
largely upon the contemporary laws of Massachusetts; and her
policy in this regard since the attainment of statehood in 1820
has developed on lines parallel to those followed by the parent
commonwealth, although there are some interesting divergences in
matters of detail. The statutes of 1821 embody the Massachusetts
law of 1786, together with such subsequent legislation as was still
in force. Jurisdiction is vested in the supreme judicial court.
Divorce from the bond of marriage is allowed for the same two causes
named in that act. Separation from bed and board for cruelty,
utter desertion, and neglect to provide is authorized, just as in
Massachusetts after 1811,[63] and this kind of divorce existed
until 1883. Three new grounds for dissolving marriage were allowed
in 1830. These were five years' wilful desertion, uniting with the
society called Shakers, and sentence to state's prison--in each of
the latter two cases the term being likewise five years.[64] To
these were subsequently added fraudulent contract and three years'
habitual drunkenness such as to incapacitate either spouse from
taking care of the family.[65]
[58] _Revision of the Stat._ (1840), 324.
[59] _Vermont Stat._ (1894), 507.
[60] _Ibid._
[61] _Acts and Resolves_ (1896), 43, 44.
[62] _Vermont Stat._ (1894), 508, 236.
[63] _Laws of the State of Maine_ (1821), I, 344-47; also SMITH,
_Laws of the State of Maine_ (1834), I, 424 ff.
[64] Act of March 6, 1830: _Pub. Acts_ (1830), 1227, 1228. This
statute merely changes the terms of another of the preceding
year: _ibid._ (1829), 1208, 1209.
[65] In 1835 a divorce is authorized "where the consent of
one of the parties to the marriage was obtained, by gross and
deliberate fraud or false pretences ... provided the parties have
not cohabited, as husband and wife, after such fraud was known
to the party, thus deceived."--_Pub. Acts_ (1835), 177. Habitual
drunkenness was added in 1838: _Pub. Acts_ (1838), 499, 500;
_cf._ _Rev. Stat._ (2d ed., 1847), 364.
A radical change was made in 1847. All the foregoing causes were at
once superseded by a sweeping provision which is without parallel
in the previous history of New England. By an act of that year,
amended in one particular in 1849, any justice of the supreme
judicial court, at any term held in the county of the parties, may
grant decrees of divorce from the bond of wedlock, when "in the
exercise of a sound discretion" he may "deem the same reasonable
and proper, conducive to domestic harmony, and consistent with the
peace and morality of society."[66] Moreover, to understand the full
import of this law we must take into account an enactment of 1850.
In no case is the libellant then to be "restricted to the proof of
causes happening within the state," or where either of the persons
is "residing within the state," but he "may allege and prove any
facts tending to show that the divorce would be" just according
to the provision of the law in question.[67] The act of 1847
remained in force until 1883,[68] when a new statute appeared which
completely transformed the divorce system of Maine. Seven causes
of dissolution _a vinculo_ are prescribed. These are (1) adultery;
(2) impotence; (3) extreme cruelty; (4) utter desertion for three
years; (5) gross and confirmed habits of intoxication; (6) cruel
and abusive treatment; and (7) gross, cruel, and wanton neglect or
refusal of the husband, being able, to provide for the wife.[69]
At the same time the decree from bed and board is abolished; and
the decree _nisi_ is instituted in practically the same form as in
Massachusetts.[70] In 1897 a modified provision as to residence was
adopted, and two years later the law took its present form. The same
seven causes sanctioned by the act of 1883 are retained, except that
under the fifth head the qualifying words are added, "from the use
of intoxicating liquors, opium, or other drugs."[71]
[66] The act of July 13, 1847, gave a "majority" of the justices
this power: _Acts and Resolves_ (1847), 8; but this was amended
in harmony with the text in 1849: _Acts and Resolves_ (1849), 104.
[67] _Ibid._ (1850), 150, 151.
[68] Except by an act of 1863, in addition to the "blanket"
provision of 1847, three years' wilful desertion is specified as
a cause: _Laws_ (1863), chap. 211, sec. 2; also in _Rev. Stat._
(1871), 488.
[69] _Acts and Resolves_ (1883), chap. 212, secs. 1, 2, p. 175
(March 13); _Rev. Stat._ (1884), 520-23.
[70] _Acts and Resolves_ (1883), chap. 212, sec. 4, pp. 175, 176;
_Rev. Stat._ (1884), 522.
[71] Compare the act of March 2, 1897: _Acts and Resolves_
(1897), 232, 233, with that of March 15, 1899: _ibid._ (1899), 89.
_b_) _Remarriage, residence, notice, and miscellaneous
provisions._--The character of a divorce law does not, of course,
depend wholly upon the number of causes for separation allowed,
but in large measure upon the conditions under which the decree is
granted and the safeguards provided to prevent hasty or clandestine
action. Whether or not either or both of the divorced persons
shall be allowed to contract further marriage, and on what terms,
has always been an important question. The more general tendency
of modern legislation, in the United States and elsewhere, is to
allow entire freedom in this regard, except for a short period
after the decree. But in New England during the century the matter
has been dealt with in various ways. Thus in Massachusetts, for
more than fifty years after the Revolution, the guilty party to
a complete divorce was absolutely 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."[72] 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.[73] 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 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."[74]
[72] 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 materia_, must be
construed together, and the exception in the first cited statute
in favor of such persons, would avail."--1 PICKERING, 509.
[73] See 1 PICKERING, 510, 511.
[74] Case of Putnam _v._ Putnam, 8 PICKERING, 433-35 (Sept.,
1829).
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."[75] Twelve years later, by leave
of the court, in case of divorce for desertion, the offending spouse
is allowed to remarry.[76] 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.[77] 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.[78] Still later all
restriction as to time is removed,[79] 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.[80]
[75] Act of March 13, 1841: _Acts and Resolves_ (1841), 371; also
in _Supp. to Rev. Stat., 1836-53_, I, 189.
[76] Act of May 19, 1853: _Supp. to Rev. Stat., 1836-53_, I, 976.
[77] Act of May 21, 1855, repealing the act of May 19, 1853:
_Acts and Resolves_ (1855), 823.
[78] Act of May 11, 1864: _Supp. to Gen. Stat., 1860-72_, I, 279.
But there must be no collusion. See 10 ALLEN, 276.
[79] Act of June 11, 1873: _Supp. to Gen. Stat., 1873-77_, 104;
Act of June 30, 1874: _ibid._, 306.
[80] Act of May 6, 1881: _Acts and Resolves_ (1881), 563; _Pub.
Stat._ (1882), 815; _Rev. Laws_ (1902), II, 1355.
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 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.[81] 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."[82]
[81] _Rev. Stat._ (1884), 520-22.
[82] _Rev. Stat. of the State of Maine_ (1884), 522. This
provision originated in 1874: _Acts and Resolves_ (1874), chap.
184, sec. 3, p. 130.
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.[83] But from 1797 onward
the laws of the state grant entire freedom to either spouse in this
regard.[84] At present the "libellee" is not permitted "to marry a
person other than the libellant for three years," unless the latter
dies.[85]
[83] SLADE, _State Papers_, 364.
[84] By an act of 1797, both parties may at once remarry: _Laws
of the State of Vt._ (1798), 364.
[85] 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.
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.[86] This provision is still
retained;[87] but either person may remarry. So also by the
Connecticut law previous to 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.[88]
[86] _Laws of N. H._ (1840), 488, 489. See subsection _a_) above.
[87] _Pub. Stat. of N. H._ (1900), 591.
[88] _Pub. Laws of R. I._ (1902), 41.
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.[89] Proceedings
for a divorce 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."[90]
[89] _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), 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.
[90] Act of May 8, 1884: _Acts and Resolves_, 181; _Supp. to Pub.
Stat._, chap. 219, p. 185; _Rev. Laws_ (1902), II, 1353.
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.[91] In Rhode Island
the term of prior residence for the petitioner is two years.[92]
As 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.[93] The term was reduced to one year in 1807.[94] 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."[95] An attempt was made in 1878 to
put a check upon the increasing number of divorces by prescribing
more careful conditions. No divorce is henceforth to "be decreed
for any cause, if the parties have never lived together as husband
and wife" in the state, nor unless the libellant shall have resided
there "one full year next preceding the filing of the libel in
court." Furthermore, no divorce may be granted for any cause "which
shall have accrued in any other state or country, unless one of the
parties was then living in the state, and unless before such cause
accrued the parties had lived together in this state as husband
and wife.[96] In substance this law is still in force, though the
present provisions are more precise. A divorce may not be granted
"for any cause which accrued in another state or country before the
parties lived together in this state as husband and wife, and while
neither party was a resident of this state, unless the libellant
shall have resided in this state at least one year and in the county
where the libel is preferred at least three months next before the
term of the court to which the libel is preferred."[97] The statutes
of Maine authorize divorce for any legal cause, if the persons were
married in the state; or if they cohabited there after marriage;
or if the libellant resided in the state when the cause of action
occurred, or had so resided for one year prior to the commencement
of the suit; or if the libellee is a resident of the state when
suit is brought.[98] With regard to foreign divorces and divorces
obtained outside the state by inhabitants thereof, the law of Maine
is identical with that of Massachusetts.[99] Throughout the century
Connecticut has maintained a high standard in this regard. With
some qualifications, three years' prior residence has always been
required of a petitioner coming into the state from abroad.[100]
As the law now stands, a complaint will be dismissed unless the
complainant has continuously resided in the state for the preceding
three years, except when the cause of divorce arose subsequently
to his removal into the same; or unless the defendant had in like
manner there resided for three years, and actual service was made
upon him; or "unless the alleged cause is habitual intemperance, or
intolerable cruelty and the plaintiff was domiciled in the state at
the time of the marriage," and before bringing the complaint has
returned with the intention of there remaining.[101]
[91] _Pub. Stat. of the State of N. H._ (1891), 495; _ibid._
(1900), 590, 591.
[92] 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.
[93] Act of Nov. 7, 1805: _Laws of State of Vt._ (1808), I, 270.
[94] _Laws of State of Vt._, I, 272, 273, 274.
[95] _Gen. Stat._ (1863), chap. 70.
[96] Act of Nov. 27, 1878: _Vermont Acts and Resolves_ (1878),
32, 33.
[97] _Vermont Stat._ (1894), 507.
[98] Act of March 15, 1899: _Acts and Resolves_, 89. _Cf._
the act of 1897: _Acts and Resolves_, 232, 233, which in the
residence clause contained the additional words "or if the
libellee is a resident of the state" at the time. This clause was
restored by _Acts and Resolves_ (1903), 31.
[99] _Rev. Stat._ (1884), 522.
[100] See _Acts and Laws_ (1797), 457; also _Stat. of the State
of Conn._ (1854), 380, where the term may be less for the
plaintiff when the defendant has been three years in the state.
[101] _Gen. Stat. of Conn._ (1887), 613; _Gen. Stat._ (1902),
1091.
Provision is likewise made by statute for proper notice to the
defendant. Usually much freedom in this regard is left to the
court. Thus in Maine, when the residence of the defendant can be
ascertained, it must be named in the libel; and if the defendant
lives out of the state, notice is to be made in such manner as
the court may order. When the residence of the defendant is not
known to the plaintiff and cannot be ascertained, the fact must be
alleged under oath in the libel.[102] According to the Connecticut
statute, the person aggrieved may make complaint to the court "in
the form prescribed for civil actions, which shall be duly served
on the other party, and whenever alimony is claimed, attachments to
secure the same may be made by direction in the suit, or by an order
pending suit in the same manner as in other civil actions." But when
the adverse party resides out of the state or is absent from it, or
his whereabouts is unknown to the plaintiff, "any judge or clerk of
the supreme court of errors, or of the superior court, or any county
commissioner, may make such order of notice to the adverse party
as he may deem reasonable." Then "such notice having been given and
duly proved," if the court finds that the defendant has actually
received it, the suit may go on; otherwise the court may either
"hear the case, or, if it see cause, order such further notice to
be given as it may deem reasonable, and continue the complaint
until the order is complied with."[103] In no case may a complaint
be heard or a decree rendered until after the expiration of ninety
days; except when the defendant appears in person or by counsel,
when the complaint is to be treated as "privileged" and assigned
at once for trial.[104] By the Vermont act of November 26, 1884,
designed to "diminish the frequency of divorces," it is provided
that "at the term succeeding the term at which the cause is entered,
or at any subsequent term to which the cause may be continued, the
same shall not be heard unless the libellee is present, except in
cases when it is proven to the court that the libellant has, in
good faith, attempted to procure the attendance of the libellee and
has been unable to do so." In this last event the court may in its
discretion proceed to try the case, postpone the hearing in the hope
of securing the presence of the libellee, or it may require the
latter's deposition.[105] This provision was repealed in 1886.[106]
By the present law, when the "libellee is without the state, the
libellant may file his libel in the office of the clerk of the court
in the county where the same is required to be brought, and such
clerk shall issue an order stating the substance of the libel or
petition, and requiring the adverse party to appear on the first day
of the next stated term of the county court" and make answer. This
order the libellant "shall cause to be published in such newspaper
as is directed by the order, three weeks successively, the last
publication to be at least six weeks previous to the commencement of
the term at which the libellee is required to appear." Should the
libellee not appear, and "the notice of the pendency of the libel
is considered by the court defective or insufficient, it may order
further notice to be given."[107]
[102] _Rev. Stat. of Maine_ (1884), 521.
[103] _Gen. Stat. of Conn._ (1887), 612; as modified by the act
of May 11, 1899: _Pub. Acts_, 1042. For the earlier laws as to
notice see _Acts and Laws_ (1797), 457; _Pub. Stat._ (1821), 178;
_Pub. Stat. Laws_ (1835), 162, 163; _Rev. Stat._ (1849), 274,
275; _Stat. of the State_ (1854), 379, 380. _Cf._ _Gen. Stat._
(1902), 1090.
[104] _Gen. Stat. of Conn._ (1887), 613.
[105] _Vermont Acts and Resolves_ (1884), 86.
[106] _Acts and Resolves_ (1886), 50.
[107] _Vermont Stat._ (1894), 508.
Massachusetts likewise has a recent provision as to notice. "When
the adverse party does not appear," declares the act of 1898, "and
the notice of the pendency of the libel is considered by the court
to be defective or insufficient, it may order such further notice as
it may consider proper." This statute further provides that "in all
libels for divorce where the cause alleged is adultery, the person
alleged to be _particeps criminis_ with the libellee may appear and
contest the libel."[108] Similar rules have been adopted by other
states.[109]
[108] Act of June 2, 1898: _Acts and Resolves_, 443; _cf._ _Rev.
Laws_ (1902), II, 1353, 1354.
[109] Rhode Island, in _Pub. Laws_ (1902), 41, has provided that
no divorce from the bond of marriage shall be granted "unless
the defendant shall, in accordance with the rules adopted by the
court, have been personally served with process, if within the
state, or with personal notice duly authenticated, if out of the
state, or unless the defendant shall have entered an appearance
in the cause; or unless it shall appear to the satisfaction of
the court that the petitioner does not know the address nor the
residence of the defendant and has not been able to ascertain
either after reasonable and due inquiry and search for six
months," in which case the court may authorize publication. For
the former law see _Pub. Stat._ (1882), 428; superseded by _Gen.
Laws_ (1896), 635. _Cf._ _Stat. of N. H._ (1891), 497.
Any serious attempt to go into the intricacies of divorce law and
procedure would, of course, here be out of place. Every phase of the
subject, as illustrated by the decisions and practice of the various
state courts, is treated with sufficient fulness and remarkable
clearness in Bishop's work on _Marriage, Divorce, and Separation_,
but a few details of more general interest may be mentioned. As a
rule, the legitimacy of the children, with the right of inheritance,
is not affected by a divorce, even when it occurs for the adultery
of the mother, but that question is left for separate determination
by the courts in the usual way.[110] So also when a supposed second
marriage is dissolved, because entered into by mistake while the
former wife or husband was living, the children are regarded as
the legitimate issue of the parent who at the time of the marriage
was capable of contracting, provided the union was made in good
faith.[111] When the validity of a marriage or the effect of any
former decree of divorce or nullity is doubted, the question may be
tried by the court on filing a libel, as in case of divorce.[112]
Sometimes the husband and wife are expressly allowed to be witnesses
in the suit;[113] or the statute may grant trial by jury at the
election of the parties.[114] Usually the court may authorize
the wife to resume her maiden name;[115] and occasionally it is
empowered to change the name of the minor children.[116]
[110] _Rev. Stat. of Mass._ (1835), 481; _Pub. Stat. of Mass._
(1882), 815; _Rev. Laws of Mass._ (1902), II, 1355; _Pub. Stat.
of N. H._ (1900), 592; _Rev. Stat. of Maine_ (1884), 522.
[111] _Rev. Stat. of Mass._ (1835), 482; _Pub. Stat. of Mass._
(1882), 810; _Rev. Laws of Mass._ (1902), II, 1347; _Rev. Stat.
of Maine_ (1884), 523.
[112] _Rev. Stat. of Maine_ (1847), 367; _ibid._ (1883), 529;
_Rev. Stat. of N. H._ (1843), 293; _Vermont Stat._ (1894), 505;
_Rev. Laws of Mass._ (1902), II, 1346.
[113] As in Rhode Island: _Gen. Laws_ (1896), 840; and Vermont:
_Stat._ (1894), 273; Maine: _Acts and Resolves_ (1899), 89. _Cf._
_Pub. Stat. of N. H._ (1891), 622.
[114] As in Maine: _Acts and Resolves_ (1899), 89; _Rev. Stat._
(1884), 521; _ibid._ (1847), 368.
[115] _Vermont Stat._ (1894), 512; _Gen. Laws of R. I._ (1896),
636; _Gen. Stat. of Conn._ (1887), 613; _Pub. Stat. of Mass._
(1882), 815. In Maine the court may change the wife's name "at
her request": _Acts and Resolves_ (1901), 167.
[116] _Vermont Stat._ (1894), 512.
_c_) _Alimony, property, and custody of children._--During the
pendency of a suit for divorce the court is authorized to make
orders forbidding the husband to put any restraint upon the personal
liberty of the wife, and for the care and custody of the minor
children. At the same time it may require the husband to deposit
money to enable the wife to maintain or defend the libel;[117]
and just provision may also be made for her temporary alimony or
support.[118] Vermont grants the county court authority, when the
parents are living separate, though not divorced, to make orders
for the "care, custody, maintenance and education" of the minor
children. Similar orders relating to the children and for the
support of the wife, in that state, may be made when without just
cause a husband "fails to furnish suitable support to his wife, or
has deserted her, or when the wife, for a justifiable cause, is
actually living apart from her husband."[119] In like manner, in all
the states, the court may make proper orders for the care, custody,
and education of the children after the divorce, and for permanent
alimony to the wife. In Vermont, New Hampshire, and Massachusetts
alimony, or an allowance in the nature of alimony, may be decreed to
the husband as well as to the wife.
[117] By the Vermont act of Nov. 22, 1898: _Acts and Resolves_,
38, 39, when a married woman files a libel for divorce and prays
for alimony, the husband is enjoined from conveying or removing
from the state, during pendency of the libel, such portion of
his estate as the judge may think necessary to secure alimony,
and from concealing or interfering with the property or clothing
of the wife and minor children, or such portion of his personal
property as may be at the time in her possession.
[118] _Pub. Stat. of Mass._ (1882), 814; _Laws of Mass._ (1821),
508, 509; _Rev. Stat. of Mass._ (1835), 482; _Vermont Stat._
(1894), 509; _Rev. Stat. of Maine_ (1884), 521; _Rev. Stat. of N.
H._ (1843), 294.
[119] _Vermont Stat._ (1894), 510, 511.
A divorce for the cause of adultery committed by the woman, by
the Massachusetts statute, does not affect her title to her
separate real and personal estate during her life, except that
the court may award the man a just share of it for the support of
the minor children decreed to his custody. Should the divorced
wife marry again, the former husband's interest in such separate
estate, after her death, ceases, except as thus required for the
children's alimony. After divorce the wife is not entitled to
dower; unless the cause be the husband's infidelity or his sentence
to confinement at hard labor; and except when the husband dies
before a decree _nisi_, granted on the wife's petition, has become
absolute.[120] The Massachusetts law, as thus broadly outlined, is
typical of that which prevails throughout New England, although
there are some important variations in matters of detail.[121] The
Vermont statute, in particular, is very clear and elaborate in its
provisions. "Upon the dissolution of a marriage, by a divorce or
decree of nullity, for any cause except that of adultery committed
by the wife," the latter is entitled to the immediate possession
of her real estate. In all cases "the court may decree to the
wife such part of the real and personal estate of her husband, as
it deems just, having regard to the circumstances of the parties
respectively; and it may require the husband to disclose on oath,
what real and personal estate has come to him by reason of the
marriage, and how the same has been disposed of, and what portion
thereof remains in his hands." There is also provision for placing
the property awarded the wife in the hands of trustees in her
behalf.[122]
[120] _Pub. Stat. of Mass._ (1882), 814-16; _Rev. Laws_ (1902),
II, 1355.
[121] For New Hampshire, see _Pub. Stat._ (1900), 592, 593. The
law of Connecticut is very general. For instance, the court may
assign the woman as alimony any part of her late husband's estate
not exceeding one-third thereof. If divorced for her misconduct,
all property received from the husband in consideration of the
marriage or of "love and affection" must be restored. A minor
child must be supported by the parents; and upon complaint of
either of them at any time, the court may inquire into their
pecuniary ability, and pass a decree against either or both for
its just maintenance: _Gen. Stat. of Conn._ (1888), 612-14. See
also _Gen. Laws of R. I._ (1896), 633-36; _Rev. Stat. of Maine_
(1884), 520-23, where it is provided that, when a divorce is
decreed for the adultery of the wife, the husband "may hold her
personal estate forever, and her real estate, of which she was
seized during coverture, during his life, if they had a child
born alive during marriage, otherwise during her life only, if he
survives her; but the court may allow her so much of her real or
personal estate as is necessary for her subsistence."--_Ibid._,
522. But by an act of 1903 it is provided that where the wife
is at fault the husband is "entitled to one-third, in common
and undivided of all her real estate, except wild lands, which
shall descend to him as if she were dead;" and the court in
its discretion may grant him a part of her personal estate. In
all cases the right, title, or interest of the libellee in the
libellant's real estate is barred by the decree of divorce: _Acts
and Resolves_ (1903), 171.
[122] _Vermont Stat._ (1894), 509 ff.
Finally, it may be noted, that only in recent years have any
of these states made any adequate provision for gathering and
publishing the statistics of divorce.[123]
[123] Massachusetts made such provision in 1882. Clerks of court
are to submit annual reports to the secretary of the commonwealth
who is to embody the facts in his own report to the legislature.
The first report is to cover the period 1879-82: _Supp. to Pub.
Stat., 1882-88_, 40, 41. In Connecticut and Rhode Island the
clerks are to make a similar report to the secretary of the
state board of health: _Gen. Stat. of Conn._ (1887), 566, 567:
_Gen. Laws of R. I._ (1896), 768, 322. The same officer is made
register of vital statistics in New Hampshire: _Pub. Stat._
(1891), 490; and that state has provided that the clerks of the
supreme court shall report to the register the record of all
divorces decreed since July 1, 1858: _Laws_ (1901), 513. Similar
reports of decrees _nisi_ are required in Maine: _Rev. Stat._
(1884), 522. Vermont has provided for the registration of decrees
under general direction of the secretary of the state board of
health, who is to publish a biennial report, beginning in 1900:
_Acts and Resolves_ (1898), 41 ff.
II. THE SOUTHERN AND SOUTHWESTERN STATES[124]
[124] In this section are considered the laws of the District of
Columbia and Porto Rico; the four territories, Arizona, Indian
Territory, New Mexico, and Oklahoma; and the fifteen states,
Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana,
Maryland, Mississippi, Missouri, North Carolina, South Carolina,
Tennessee, Texas, Virginia, and West Virginia.
_a_) _Legislative divorce._--In the South, as elsewhere[125]
shown, divorces were at no time granted during the provincial era.
Even the provisions of the English ecclesiastical law were not in
force, because tribunals competent to administer them were not
created. Separation by mutual consent, or some sort of separate
maintenance, was the only kind of relief then obtainable. Indeed,
after independence was declared, it was more than half a century in
Virginia and Maryland, and many years in North Carolina, before the
courts were granted even partial jurisdiction in divorce causes.
[125] See chap. xv, sec. ii.
The legislature, however, was not inactive. Conservative as southern
sentiment is supposed to have been regarding dissolution of the
marriage bond, it is precisely in the South that legislative divorce
was tried on the widest scale and where it bore its most evil
fruit. It seems probable that from the earliest times following the
Revolution, in some of these states, marriages were dissolved by
ordinary bills passed by the assemblies. Of these a few examples
have been discovered, although they are all of relatively late
origin. The earliest appear in the Maryland statutes. Thus, by the
act of December 21, 1790, the marriage between John Sewall, of
Talbot county, and Eve, his wife, was declared null and void, on
the ground, set forth by John in his petition, that, having been
convicted of bearing a "mulatto child," his wife with the child had
been condemned to servitude and sold, according to the cruel statute
of 1715 "in such case made and provided."[126] Another instance of
absolute divorce occurred in 1805. It seems that on account of his
misconduct Archibald Alexander and his wife Susanna had "mutually
agreed to live separate and apart from each other, and that articles
of separation were entered into between them for that purpose."
While they so lived apart the "said Susanna" took "upon herself
the charge of six children, two of which were the children of the
said Alexander." But, continues the petition, "in the month of July
last there was a well founded report" that Archibald was dead; and
"under this belief" Susanna formed a second marriage with John
Musket. Accordingly, on their prayer, the legislature declared the
former contract "absolutely and to all purposes null and void," and
Archibald and Susanna "divorced _a vinculo matrimonii_," but without
affecting the rights or legitimacy of the children of the first
marriage.[127]
[126] _Laws of Md._ (1790), chap. xxv. _Cf._ BACON, _Laws of Md._
(1715), chap. 44, sec. 26.
[127] _Laws of Md._ (1805), chap. xxxiii.
The session laws for 1806-7 afford five more examples of absolute
divorce. On January 3, 1807, Pamela Sampson got herself released
from her husband George, because they had long lived "on terms
incompatible with the happiness of the conjugal union, which
every day, if possible, increased, owing to intoxication which
deranged his mind." On the next day Catherine Dimmett, finding
herself in the same sad relation with James, her spouse, alleges
that she "considers herself in hourly danger from his violence, as
he not only attempted his own life, by cutting his own throat in
the most barbarous and shocking manner," but has also repeatedly
threatened hers, "thereby showing himself free from every moral
restraint, and prepared for the commission of the most desperate
and bloody deeds." Moreover, he remains in "one continuous state of
intoxication, and freely indulges in every species of irregularity;"
for all of which the worthy lawmakers felt justified in granting
her prayer. On the same day, for cause not named, the nuptial tie
of Benjamin and Ruth Fergusson was dissolved, but on condition that
the act shall have no force unless the husband shall "give bond,
with good and sufficient authority, to be approved by the orphan's
court of Baltimore County, ... for the payment of the sum of thirty
dollars _per annum_ to the said Ruth during her life, so long as
the said Benjamin shall live." In the other two cases no ground is
assigned.[128]
[128] _Maryland Laws_ (1806-7), chaps. xxxix, lxix, lxxvi,
lxxvii, lxxx.
During the following years the legislature was from time to time
appealed to for relief.[129] In 1830 the first act regulating
divorce appears in the statute-book. This law provides for judicial
process in the initial stages, but leaves the final action to
the assembly. It is made "lawful for any person who may intend
to apply to the legislature for a divorce, to file a petition,
stating the ground of his application, in the court of the county
in which the person from whom he desires to be divorced resides."
Upon the "filing of such petition, a subpoena shall issue to
the party implicated, to appear and answer the same; and, upon
such appearance, it shall be the duty of the court to issue a
commission to a person or persons therein to be named, to take
such testimony as the respective parties require." This testimony,
taken after twenty days' notice, must be returned to the clerk of
the court issuing the process, who is directed to forward it to
the legislature together with "the petition, answer, and all other
proceedings had under the application."[130]
[129] Thus the _Laws_ of 1807-8, chaps. xx (no cause given), xxx
(no cause given), ciii (desertion and elopement of wife), clxvi
(no cause given), yield four cases; and the _Laws_ of 1809,
chaps. xxiv, l, two cases more (no cause assigned).
[130] Act of Feb. 27, 1830: _Laws_ (1829-30), chap. 202.
Still further precautions were taken in 1836. In no instance, it is
declared, may a divorce be granted unless the persons shall have
been _bona fide_ residents of the state for at least twelve months
before application. Furthermore, in the case of such residents the
sanction of two-thirds of each branch of the legislature is required
either for an absolute or for a limited divorce.[131] Five years
later the preliminary procedure was changed, and some provision
for notice to non-residents was introduced. Application is now to
be made "to some justice of the peace, who shall thereupon issue
a subpoena directed to some constable or other person, who shall
serve the same on the person from whom the divorce is sought." After
service and return of the subpoena, either party may, after the
lapse of thirty days, proceed to take testimony before a justice of
the peace, if they both reside in the same county or city, otherwise
by deposition, and transmit it to the legislature at its next annual
session. But when the libellee is a non-resident, or is absent from
the state, the applicant must give at least three months' notice of
his intention to ask the assembly for a divorce, in some newspaper
published in the city of Baltimore. Such testimony shall be taken on
oath before a justice and transmitted to the legislature as in the
case of residents.[132]
[131] Act of March 4, 1836: _Laws_ (1835-36), chap. 128. Twelve
months' residence is required by this act.
[132] Act of March 9, 1841: _Laws_ (1840-41), chap. 238.
The law of 1841 was the last attempt in Maryland to regulate
legislative divorce. The efforts of the preceding twelve years
to devise checks and provide safeguards were largely unavailing.
Division of responsibility between the court and the legislature,
whose effects are so well illustrated in the case of Georgia
presently to be considered, is pretty sure to result in the removal
of all real responsibility. Each successive year produced an
increasing crop of divorces. Thirty-one were granted in 1835, and
thirty-six in 1837. Occasionally the decree is from bed and board;
in most cases it is for absolute dissolution of the marriage bond.
Usually it is curtly expressed in a few words of the statute-book.
Often the cause is not mentioned; although, after 1830, the details
in most instances are doubtless to be found in the judicial papers
transmitted to the assembly.[133] In 1842, for the first time,
full jurisdiction in divorce cases is bestowed upon the courts.
Consequently there is a falling off in the number of legislative
decrees; but they nevertheless continue to appear in the session
laws until the constitution of 1851 forbids the general assembly to
interfere in such matters.[134]
[133] For the numerous cases of legislative divorce see the
_Index to the Laws of Maryland, 1826-31_; _ibid._, _1832-37_;
_ibid._, _1837-45_, 224-29.
[134] The constitution of 1851, Art. III, sec. 21, declares that
"no divorces shall be granted by the General Assembly."
Virginia anticipated Maryland by fifteen years in granting to the
superior court of chancery full power to hear and determine suits
for absolute and partial divorce. The act of 1827 names the causes
for which alone judicial divorces of either kind may be granted,
and provides for alimony and custody of the children. But this
statute also contemplates the obtaining of divorce _a vinculo_
through resort to the legislature. It is provided that "every person
intending to petition the general assembly for a divorce, shall
file in the clerk's office of the superior court of laws, for the
county in which he or she may reside, a statement of the causes on
which the application is founded." At least two months before the
next court, notice must be given to the adverse party "by personal
service," when a resident in the state; otherwise, by publication
for four weeks in "some newspaper printed in the city of Richmond."
Thereupon, "without other pleadings in writing," the court "shall
cause a jury to be impanelled to ascertain the facts set forth in
the said statement; and their verdict shall be recorded;" but the
confession of the parties shall not be accepted as evidence at the
trial. A certified copy of these proceedings must accompany every
petition presented to the legislature; unless a divorce from bed and
board shall have been previously granted by the court of chancery,
in which case a copy of the record may be substituted.[135]
[135] Act of Feb. 17, 1827: _Acts of the Gen. Assembly_
(1826-27), 21, 22. The same act is repeated in _Supp. to Rev.
Code_ (1833), 222, 223. The law of 1827 appears to be the first
legislation of Virginia on the subject of divorce, although
"lawful divorce"--meaning doubtless that of the legislature--is
incidentally mentioned in the act of 1792: _Acts_ (1794), 205.
The act of 1827 provides in all cases for an appeal to the court
of appeals, but, apparently, not in divorces granted by the
assembly.
Under the law of 1827 resort was often made to the general
assembly,[136] until in 1848 an act appeared which, after granting
to Robert Moran a divorce from his wife Lydia, seeks to abrogate the
practice so far as by statute it may be done. "Whereas," runs the
preamble, "applications to the legislature for divorces _a vinculo
matrimonii_ are becoming frequent, and occupy much time in their
consideration, and moreover involve investigations more properly
judicial in their nature, and ought, so far as the legislature can
do it, [to] be referred to the judicial tribunals of the state;"
therefore the courts are granted the same full jurisdiction in
absolute divorce which they already possessed in petition for
separation from bed and board.[137] This law would not necessarily
have put an end to the evil; for the acts of one legislature
cannot bind those of another; but that was soon effected by the
constitution of 1851, which deprived the assembly of all authority
to hear divorce petitions.[138]
[136] Thus, on Jan. 25, 1827, Macy, _alias_ Amasa Gay (formerly
Birdsong), got a divorce from her husband Charles. The cause
is not mentioned, but he is not permitted to marry during her
lifetime: _Acts_ (1826-27), 126. On Jan. 27, 1827, David Parker,
of the county of Nansemond, was released from his wife Jane, who
likewise was not allowed to remarry: _ibid._, 126.
[137] Act of March 18, 1848: _Acts of the Assembly_ (1847-48),
165-67.
[138] Constitution of 1851, Art. IV, sec. 35: see _Code_ (1860),
48.
For a few years North Carolina tried a still different plan for
sharing responsibility between the courts and the legislature.
By the act of 1814 full authority to grant separation from bed
and board, for any of the causes therein named, with alimony to
the wife, is conferred upon the superior court. The same tribunal
may also try petitions for full divorce, dismissing the petition,
dissolving the "nuptial ties or bonds of matrimony," or declaring
the contract null and void, as the case demands; but it is
especially provided that "no judgment, sentence, or decree of final
or absolute divorce" shall be "valid until ratified by the general
assembly."[139] This condition was, however, removed in 1818;[140]
and ten years thereafter legislative divorce was entirely abolished,
so far as it was possible to accomplish it by statute. Because "the
numerous applications for divorce and alimony, annually presented
to the general assembly, consume a considerable portion of time
in their examination, and consequently retard the investigation
of more important (_sic_) subjects of legislation;" and because
"such applications might be adjudicated by other tribunals with
much less expenditure to the state, and more impartial justice to
individuals;" it is therefore enacted that the superior courts of
law shall have "sole and original jurisdiction" in both kinds of
divorce. From this act it may be inferred that the legislature had
granted divorces on petitions which had not gone through the courts
and come up to it for ratification; and for causes other than those
named in the statute.[141] A few years later, by a constitutional
amendment ratified in 1835, the assembly was deprived of the "power
to grant a divorce or secure alimony in any individual case;" and
the same prohibition appears in the constitution of 1876.[142]
[139] _Laws_ (1814), chap. 5; also in _Haywood's Manual of the
Laws of N. C._ (1819), 174-78.
[140] _Acts_ (1818), chap. 968.
[141] This inference is justified by the words of the act as
quoted, and from the clause declaring "that all applications for
other causes than those specified"--in the act of 1814--"shall
be subject to the rules and regulations provided in said act for
the causes therein mentioned."--_Acts_ (1827-28), 19, 20. The law
of 1814, as to causes, appears unaltered in _Laws of the State_
(1821), II, 1292-95.
[142] POORE, _Charters_, II, 1416 (1835), 1439 (1876).
Until constitutionally prohibited in 1852-53, legislative divorce
also existed in Missouri.[143] The law of 1833 endeavors to restrict
the action of the assembly to cases for whose trial "before the
judiciary" the law has not provided; and it forbids entirely the
hearing of any petition when the causes for it "shall have accrued
since the next two months preceding the sitting of the legislature."
At the same time notice to the opposite party is made essential.
In the case of residents, two months' written notification is
required, service to be proved by affidavit. If the libellee is a
non-resident, publication in a newspaper for at least three weeks
successively will suffice.[144]
[143] By the ninth amendment to the constitution of 1820,
ratified at the session of 1852-53: _Rev. Stat._ (1856), I, 96;
POORE, _Charters_, II, 1122. The prohibition is retained in the
constitution of 1875, Art. IV, sec. 53: POORE, _Charters_, II,
1175.
[144] Act of Jan. 31, 1833: _Laws of a Public and General Nature_
(1842), II, 361.
The government report shows several divorces in South Carolina
for the year 1869-70; and these were probably granted by the
legislature, for no divorce statute then existed.[145]
As early as 1803 the statutes of the Mississippi Territory make
provision for both kinds of divorce by judicial sentence; but
resort to the legislature is not prohibited.[146] Later, by the
constitution of 1817 and the laws thereunder enacted, it is declared
that "divorces from the bonds of matrimony shall not be granted,
but in cases provided for by law, by suit in chancery;" but it is
especially provided that "no decree for such divorce shall have
effect until the same shall be sanctioned by two-thirds of both
branches of the general assembly."[147] This unwise condition--in
substance so often appearing in the enactments of the South--seems
to have lasted only until 1832, when it was omitted in the
constitution framed in that year. In the meantime the legislature
had found plenty of work to do. The session laws of 1833, for
example, contain nine divorce decrees, passed probably just before
the new constitution went into effect.[148]
[145] WRIGHT, _Report_, 388, 389, 155.
[146] Act of March 10, 1803: _Stat. of Miss. Ter._ (1816), 252-54.
[147] Constitution of 1817, Art. VI, sec. 17: POORE, _Charters_,
II, 1064; carried out by act of June 15, 1822: _Code of Miss._
(1848), 496.
[148] _Laws_ (1833), 235 ff.; Const. of 1832, Art. VII, sec.
15: POORE, _Charters_, II, 1077. The omission of the clause
expressly requiring legislative sanction in the constitution of
1832 seems clearly to be intended to abolish legislative divorce.
Yet the act of 1840 makes the decrees of the courts "final and
conclusive, as fully as though the same had been confirmed by
the legislature;" from which language one would naturally infer
that the legislature had continued to ratify divorces after the
constitution went into effect: _Laws_ (1840), 51.
Legislative divorce is prohibited by the constitution of 1868,
Art. IV, sec. 22: POORE, _Charters_, II, 1084; and by Art. IV,
secs. 87 and 90 of the constitution of 1890: _New York Convention
Manual_, Part II, Vol. I, 1067 (1894).
Alabama, as a part of the Mississippi Territory, was, of course,
affected by the act of 1803 above cited.[149] Resort to the
legislature may have been practiced from the beginning. At any
rate, during the existence of the Alabama Territory--from 1817 to
1819--ten divorces were thus obtained.[150] The people seem to have
been so much in love with the custom that it is sanctioned, on the
usual co-operative plan, by the constitution of 1819. The sixth
article of that instrument requires that all decrees of the courts
granting absolute dissolution of wedlock shall be confirmed by
two-thirds of each house of the assembly, precisely in the same form
as by the constitution of Mississippi two years earlier.[151] The
act of the next year, conferring jurisdiction in such cases on the
circuit courts and defining the causes of divorce, directs that the
record of evidence made by the court in each suit shall be sent to
the speaker of the house of representatives, who is to open and have
it read before the members.[152]
[149] The act also appears in _Digest of Laws of Ala._ (1823),
252.
[150] _Digest_ (1823), 254.
[151] Art. VI, sec. 3, Const. of 1819: _Digest_ (1823), 255:
POORE, _Charters_, I, 42.
[152] Act. of Dec. 21, 1820: _Digest_ (1823), 256.
It is not surprising that these "safeguards" proved as futile in
Alabama as elsewhere. The obtaining of divorces was facilitated
rather than hindered. The number annually granted mounts apace.
In 1822 the record is not yet formidable, but the session laws
show twenty-three cases in 1843, twenty-four in the next year, and
not less than sixty-seven in 1849-50.[153] So it seemed necessary
to appeal to organic law for a remedy. The constitution of 1865
therefore declares that absolute divorces shall only be granted by
a suit in chancery; and that decrees in chancery "shall be final,
unless appealed from in the manner prescribed by law, within three
months" from the date of their enrolment. This section is repeated
in the constitution of 1867; but in that of 1875 a different
provision appears. "No special or local law," it is now declared,
"shall be enacted for the benefit of individuals or corporations in
cases which are or can be provided for by a general law, or where
the relief sought can be given by any court" in the state.[154] From
the terms of this section it may be inferred that in exceptional
cases resort might still be had to the assembly. Accordingly, in
1883, by legislative decree, we find that Claudia Shaw, of Macon
county, was released from the conjugal bond and constituted a _feme
sole_ for all purposes whatsoever.[155]
[153] For these examples see _Digest_ (1823), 256-58 (those of
1821-22); _Acts_ (1843), 143-47; _Acts_ (1843-44), 210; _Acts_
(1849-50), 517.
[154] _Cf._ Const. of 1865, Art. IV, sec. 30; that of 1867,
Art. IV, sec. 30; and that of 1875, Art. IV, sec. 23: POORE,
_Charters_, I, 53, 65, 81.
[155] _Acts_ (1882-83), 587.
The history of American lawmaking in Louisiana opens with two
divorce decrees passed by the legislative council of the Territory
of Orleans. By the first of these acts, dated January 23, 1805, and
signed by Governor Claiborne, the marriage of Captain James Stille
and Lydia his wife is dissolved and each is "fully authorized" to
"contract in matrimony" again whenever to either it "may seem
right." This separation is allowed "in consequence of an unhappy
disagreement, resulting from circumstances of an afflicting
nature," which had prevented the couple from "enjoying that harmony
and domestic happiness which the conjugal state was designed to
produce," and leading them soon after the marriage "to resolve upon
and stipulate for a complete and perpetual separation."[156]
[156] _Acts Passed at the First Session of the Leg. Council of
the Ter. of Orleans_ (1805), 454-56. On May 1, 1805, a divorce
was granted to James Elliot and Sophia his wife: _ibid._, 456-58.
This example found frequent imitation both before and after the
state of Louisiana was organized. By March 3, 1827, forty-six
legislative divorces had been granted.[157] With these, however,
the history of such cases comes to an end; for, a few days later,
exclusive jurisdiction in all divorce matters was bestowed upon the
courts;[158] and the policy thus adopted by statute was ratified by
the constitution of 1845.[159]
[157] LISLET, _Gen. Digest_, II, Appendix, 25, 26, gives the
list, with dates. These divorce acts, as usual, fill each but two
or three lines in the statute-book, and usually the cause is not
assigned. For examples see _Acts_ (1822), 12; _ibid._ (1826), 34,
58, 60, 62, 222; and _ibid._ (1827), 12, 18, 24.
[158] By the act of March 19, 1827: _Acts_, 130-35.
[159] Const. of 1845, Art. CXVII: POORE, _Charters_, I, 721; also
Const. of 1852, Art. CXIV: POORE, _op. cit._, I, 735; _Civil
Code_ (1853), 19; Const. of 1864, Art. CXVII; and Const. of 1868,
Art. CXIII: POORE, _op. cit._, I, 750, 767.
A federal law in 1886 prohibits legislative divorce in any of the
territories of the United States. Previous to that date, however, it
had existed in Arizona. During the single session of 1879 seventeen
divorces were granted by legislative decree; and the practice may
have continued until stopped by congressional authority.[160]
[160] Fifteen of these divorces were granted by the one act of
Feb. 7, 1879: _Acts and Resolutions_ (1879), 5-8; for the others
see _ibid._, 46, 112; and compare the act of Congress of July 30,
1886: _Statutes at Large_, XXIV, 170. In the same year, 1879,
twenty-eight divorces were granted by the courts of Arizona, and
five in the year before: WRIGHT, _Report_, 151.
Kentucky refrained from any divorce legislation until 1809, when
jurisdiction was conferred upon the circuit courts.[161] But the
jurisdiction was not exclusive; for year by year until 1850, when
the usual constitutional interdict appears,[162] the session laws
show the assembly engaged in passing divorce decrees.[163] In the
meantime provision was made for notice to the adverse party. By
the act of 1837, in case of residents of the state, there must be
one month's written notice in which the ground of the intended
application to the legislature shall be set forth; while, if the
defendant is a non-resident, publication of the notice for four
weeks in some "authorized" newspaper "may supersede the necessity of
personal service." When a divorce is granted on such application,
the wife shall receive back the estate which the husband had with
her at the marriage, unless she has been guilty of conduct such as
by the laws of the state would forfeit her right of dower; and when
the husband's conduct is the cause of separation, she is entitled
to the same share of his real and personal property as if he were
dead.[164]
[161] Act of Jan. 31, 1809: LITTELL, _Stat. Law_ (1814), IV, 19,
20.
[162] Const. of 1850, Art. II, sec. 32: POORE, _op. cit._, I, 671.
[163] See the Index to _Acts of the Gen. Assembly_ for each year,
1809-50.
[164] Act of Feb. 23, 1837: _Acts_ (1836-37), 323, 324.
A few years later the Kentucky assembly accomplished a feat which
surely "breaks the record" in the history of social legislation. On
the 4th of March, 1843, in one short act of less than two pages of
type the hymeneal bonds of thirty-seven couples were severed by one
fatal clip of the lawmakers' shears; while, in addition, room is
found in the bill to make provision for the children and to restore
the maiden names of some of the women, but not for any mention of
the causes.[165]
[165] _Acts of the Gen. Assembly_ (1842-43), 205, 206.
It is in Georgia, however, that the divorce laws and judicial
decisions reveal the strangest vicissitudes and the most singular
vagaries. To understand the course of events it is essential in the
outset to observe two important facts. The common law, it will
be remembered,[166] was, with certain limitations, adopted by the
state in 1784; and the constitution of 1798 permits "two-thirds of
each branch of the legislature to pass acts of divorce," but only
after the parties shall have had a fair trial before the superior
court, and a "verdict shall have been obtained authorizing a divorce
upon legal principles."[167] It would have been hard to select
a phrase more ambiguous than the clause last quoted. Just what
are the "legal principles" referred to? Are they the principles
of the English ecclesiastical law, as constituting a part of the
common law made binding in 1784? Are they perhaps to be sought in
previous enactments of the state or province of Georgia? No such
statutes have been discovered; and no divorce seems ever to have
been granted, unless by the assembly after the Revolution. With this
analysis of the problem before us, the course of legislation during
the half-century following the adoption of the constitution of 1798
may now be traced.
[166] See chap. xv, sec. ii.
[167] Const. of 1798, Art. III, sec. 9: _Digest of Laws of Ga._
(1801), 40; POORE, _op. cit._, I, 394.
The worthy lawmaker starts out valiantly. The act of 1802, giving
the superior court primary and the legislature final jurisdiction
in petitions for total divorce, as required by the constitution, is
justified in language which seems grotesque in the light of later
experience. Such a measure is needful, we are assured, not only
because there are doubts as to the powers of the judges in divorce
causes without a statute, but because "marriage being among the most
solemn and important contracts in society, has been regulated in all
civilized nations by positive systems;" and because "circumstances
may require a dissolution of contracts founded on the most binding
and sacred obligations which the human mind has been capable of
devising, and such circumstances may combine to render necessary the
dissolution of the contract of marriage, which dissolution ought
not to be dependent on private will, but should require legislative
interference; inasmuch as the republic is deeply interested in the
private business of its citizens."
The preliminary trial provided for by this act is before a jury
whose verdict must take the following form: "We find that sufficient
proofs have been referred to our consideration to authorize a total
divorce, that is to say, a divorce _a vinculo matrimonii_, upon
legal principles between the parties in this case"--which is an
attempt, however awkward, to satisfy the demands of both law and
constitution.[168] In 1806 a new statute appears, creating a most
intricate procedure. As in 1802, no specific causes are named for
either limited or complete divorce. All petitions coming before the
superior court are to be referred to a "special jury, who shall
enquire into the situation of the parties before their marriage and
also at the time of the trial." They may grant either a conditional
or a total divorce. In the former case their verdict shall make
provision out of the husband's property for the separate maintenance
of the wife and children; and the court shall cause the "verdict or
decree to be carried into effect according to the rules of law, or
according to the practice of chancery, as the nature of the case may
require." The verdict for absolute divorce is, of course, placed
before the legislature for approval. If the legislature "refuse to
pass a law or to carry the same into effect," either person, on due
notice to the other, may apply to the superior court of his county
to appoint three commissioners who, after proper inquiry into the
circumstances of the parties, by witnesses when necessary, may
allow separate maintenance. The report of the commissioners to the
court is to be entered as its judgment. Even now the matter is not
ended. There is still a last chance for the discontented spouse. If
dissatisfied with the judgment, either person may apply for its
modification to the next court, which shall refer the first report
or decree to a commission comprising the original three members,
with two others. The finding of this body is then entered as the
definitive judgment of the court.[169]
[168] Act of Dec. 1, 1802: in _Compilation of Laws of Ga._
(1812), 98-100.
[169] _Compilation of Laws of Ga._ (1812), 312-14.
Thus the law remained until 1833, except that a form of oath was
prescribed in 1810.[170] In the meantime an ever-increasing number
of divorce acts appears in the session laws.[171] Between 1798
and 1835 at least two hundred and ninety-one decrees for absolute
dissolution of marriage were granted by the legislature. In the
beginning of the period the average annual output was but four; at
the close it had risen to not less than twenty-eight.[172] In one
instance the previous finding of a jury seems to have been thought
superfluous. John Cormick, having fled from Ireland to Georgia in
1798, before the constitution went into effect, and his family
refusing to accompany him, the legislature, without a verdict,
declared his person and property exempt from the claims of Eliza his
wife as if they were never married, and John was fully authorized
to do all things as if he had never entered into the matrimonial
state.[173] Another case shows the Georgia lawmaker a close second
in legal economics to his brother of Kentucky. On December 13,
1816, twenty-one pairs were set free and the offenders forbidden
to remarry in thirteen lines of print, excluding the names.[174]
In 1833 a remedy was therefore sought through an amendment to the
constitution. "Whereas," explains the preamble, whose redundant
adjectives may well be a sign of serious distress, "the frequent,
numerous, and repeated, applications to the legislature to grant
divorces has (_sic_) become a great annoyance to that body, and
is (_sic_) well worth their attention," both on account of the
expense and the unnecessary "swelling" of the laws and journals, and
"believing that the public good would be much promoted, and that the
parties would receive full and complete justice;" therefore it is
enacted as a part of the organic law that "divorces shall be final
and conclusive when the parties shall have obtained the concurrent
verdicts of two special juries authorizing a divorce upon legal
principles."[175]
[170] PRINCE, _Digest_ (1837), 190; Head _v._ Head, 2 _Georgia_,
193.
[171] In the _Compilation of Laws_ (1812), 61, 83, 113, 202-4,
264, 385, 408, 508, 509, 512, 569, are eighteen divorce acts;
many appear in _Laws of Ga., 1810-19_ (1821), 193-96, 252-63;
and eighty-six cases, in DAWSON, _Compilation, 1819-29_ (1831),
141-53.
[172] PRINCE, _Digest_ (1837), 187, note, gives the following
summary, which appears to be inconsistent: "The number of persons
divorced by the legislature since the date of the present
constitution up to the close of the annual session of 1835, is
291, averaging from 1800 to 1810, about 4; from 1810 to 1820, 8;
from 1820 to 1830, 18, and since that time, 28 per annum." If
his averages are correct, the total number for the entire period
would be about 440.
[173] Nov. 27, 1807: _Compilation_ (1812), 385, 386.
[174] _Laws of Ga., 1810-19_ (1821), 262, 263.
[175] Const. 1798, Art. III, sec. 9, amendment of 1833, in force
1835: PRINCE, _Digest_ (1837), 911; POORE, _Charters_, I, 399.
Unless it be assumed that there was no serious intention to put
a check upon the facility with which divorces could be obtained,
it is almost incredible that a provision so loose and ambiguous
should have been adopted. For the retention of the phrase "upon
legal principles" still left a rich field for speculation as to the
proper grounds of divorce, total or conditional; and it was equally
uncertain whether the juries could determine the law as well as the
facts in each case. So the courts, apparently, continued to grant as
many divorces without help of the assembly as were permitted before
that body lost its power to interfere.
Affairs continued in this unsatisfactory condition until 1847,
when suddenly what proved in the end to be a drastic remedy was
administered in the case of Head _v._ Head, tried on appeal from
the superior court of Monroe county. The elaborate opinion of
Justice Nisbet in this suit, reviewing as it does the preceding
legislation, is the best source of information for the history of
divorce in Georgia. The case arose in a petition for dissolution of
the marriage bond on the sole ground of abandonment of the husband
by the wife, which ground, "it is too plain to admit of question,"
is not "recognized as a cause of divorce _a vinculo_" by the common
law. On the other hand, the counsel for the appellant argued that
by "a fair construction of the constitution of Georgia, and of the
laws enacted to carry it into effect, the question of a divorce
or not, in its totality, is submitted to the special juries; that
they are the sole and final judges in all cases of what shall be a
good cause of divorce, irrespective of the common law principles."
To determine, therefore, the relative powers of the judge and the
jury, and to discover what are the "legal principles" mentioned
in the constitution, became the dual problem which the court was
called upon to solve. In the outset it is held by the court that
the constitution of 1798 is in restraint of divorce in three
ways: (1) by transferring full jurisdiction in the first instance
from the legislature to the superior courts; for before that date
the assembly had exercised "unlimited power over the subject;"
(2) by restraining the legislative will through requiring a fair
trial before a jury before that will could be exercised; (3) by
"restricting both the courts and the legislature, as to their power
to grant divorces, to such cases as were grantable upon _legal
principles_."
Disregard of these intended restrictions in the statutes and in
judicial practice had led to most serious evils. The reasons
assigned in the preamble to the amendment of 1835, Justice Nisbet
urges, were not the true reasons which actuated its authors.
That amendment arose "in a conviction upon the minds of prudent
and discerning men, that divorces under the constitution of 1798
were alarmingly frequent;" and this was due to the fact that
responsibility was divided between the courts and the legislature.
"Under the old system, the courts but rarely seem to have felt, that
they had anything to do with the trial of the divorce cause, other
than to subserve the double purpose of an automaton agent in the
hands of lawyers to present their cases to the juries. Believing
that the legislature, whether for good or evil, had made the juries
the sole arbiters of the law and facts, they could of course feel
no responsibility about the matter, and the consequence was, as all
men know who know anything of our courts of justice, that divorces
were had with flagrant facility; that some were refused which ought
to have been allowed, and hundreds were granted which ought to have
been refused; and that the event of a divorce cause depended more
upon the fact whether it was defended or not, and if defended, upon
the zeal and ability of counsel, than upon anything else. Nor was
the case essentially different when it came before the legislature.
The legislature, taking it for granted that the courts had settled
all the _legal principles_ involved, in the majority of cases,
with ready acquiescence affirmed the judgment of the court and
divorced the parties. The wealth and standing of the parties, their
political and social relations, or, perhaps, the personal beauty and
address of a female libellant, controlled in many cases the action
of the legislature." Referring to the statistics of legislative
divorce, above quoted, the court continues: "How fearful was the
ratio of increase! Well might the patriot, the Christian, and the
moralist look about him for some device to stay this swelling tide
of demoralization." But "it is said that the new mode of granting
divorces has not remedied the evil; that divorces are as frequent
under the new as under the old constitution. This is, we admit,
to a great extent true, and the reason is obvious. It is owing to
the wrong construction of the constitution"--the submission to the
jury of the whole question of law as well as of fact. The Georgia
legislature was not checked, as in England, by the record of two
preceding trials;[176] "and although in France, divorces by the
Napoleonic Code[177] may be granted without cause, upon mutual
consent merely, yet the application must be made to a judicial
tribunal, and the consent is subjected to constraints, which create
great and serious checks upon its abuse."
[176] See chap. xi, sec. 3, _c_).
Accordingly, it was held by the court that the sole causes for
"divorce in Georgia are those of the common law." For total divorce,
or, more properly speaking, annulment of a voidable marriage, these
causes are "pre-contract, consanguinity, affinity, and corporal
infirmity;" while for a partial divorce adultery and cruelty are the
only grounds recognized.
One cannot help admiring the stern moral courage which enabled the
court to render this decision. At one stroke and without warning the
social standing of hundreds was put in jeopardy. Those who thought
themselves single found themselves married. Many who may have taken
new partners became liable to actions for bigamy; and their children
were bastards. The justice was aware of his grave responsibility.
"The judgment we have given in this case is in repeal of the
practice of the courts in a majority of the circuits, and in
disaffirmance of the opinion of eminent jurists upon the bench
and at the bar, and in conflict with that public sentiment which,
springing out of, and strengthened by, the heretofore judicial
facility which has characterized the action of the courts, tolerates
and expects divorces for slight causes." At the same time, however
wise, and in the event beneficent, may have been this judgment, one
must also confess that in its wider bearings it reveals the dangers
for society which may lurk in the unyielding logic of individual
judicial opinion, should healthy public sentiment not be allowed, at
least in some measure, to direct and mold the decrees of our courts
of justice.[178] The hardships arising from the decision in question
were redressed in 1849 by an act validating all second marriages
formed in consequence of divorces granted for illegal causes by the
courts or by the legislature; and the same year this extraordinary
episode in social history was brought to a close by a constitutional
amendment declaring that "divorces shall be final and conclusive
when the parties shall have obtained the concurrent verdicts of two
special juries authorized to divorce upon such legal principles as
the general assembly may by law prescribe."[179]
[177] _Code Napoléon_, Nos. 233, 275-97.
[178] Case of Head _v._ Head, 2 _Georgia Reports_, 191-211.
[179] Const. of 1798, Art. III, sec. 9, amendment of 1849: COBB,
_Digest_ (1851), 1123; POORE, _Charters_, I, 401.
_b_) _Judicial divorce: jurisdiction, kinds, and causes._--Although
during the colonial period divorce laws had not been enacted,
after the birth of the nation the wheels of legislation, in most
cases, were slow in starting. Once set going, however, they have
moved swiftly enough, so that now a great variety of grounds
for dissolution of wedlock are sanctioned. Under influence of
ecclesiastical law and tradition, conservatism is shown in the
retention by nearly all the older states of so-called divorce from
bed and board. Except in Arizona, Mississippi, Missouri, New Mexico,
Oklahoma, Porto Rico, and Texas, partial divorce is still permitted
in all of the commonwealths and territories under review having any
legislation on the general subject; for South Carolina, except for a
brief period, has never by statute authorized any kind of divorce;
and in Florida separate alimony has the same effect as divorce from
bed and board.
By the Virginia law of 1827, as already seen, absolute divorce,
properly so called, can only be obtained from the legislature,
although the superior courts of chancery are then authorized to
annul voidable marriages.[180] The same tribunals, however, are
granted full "cognizance of matrimonial causes on account of
adultery, cruelty, and just cause of bodily fear; and in such
cases may grant divorce _a mensa et thoro_ in the usual method
of proceeding in those courts." They may thus "decree perpetual
separation and protection to the persons and property of the
parties;" grant to "either, out of the property of the other, such
maintenance as shall be proper;" restore "to the injured party, as
far as practicable, the rights of property conferred by the marriage
on the other;" and provide for the custody, guardianship, and
support of the children.[181]
[180] For natural and incurable impotency of body at the time of
entering into the matrimonial contract; as also for idiocy and
bigamy.
[181] Act of Feb. 17, 1827: _Acts of Gen. Assembly_ (1826-27),
21, 22. _Cf._ same law in _Supp. to Rev. Code_ (1833), 222, 223.
To the causes for which a limited divorce may be obtained
"abandonment and desertion" was added in 1841, and the provision
authorizing annulments was somewhat modified.[182] By the act of
1848, putting an end to legislative interference, the "circuit and
superior courts of law and chancery" are given authority to grant
absolute divorce on the single ground of adultery, with liberty
to both parties to remarry, or only to the innocent or injured
party, as may seem just.[183] A statute of the next year allows
limited divorce for cruelty, reasonable apprehension of bodily
hurt, abandonment, or desertion; and these four causes are still in
force.[184]
[182] Act of March 17, 1841: _Acts of the Assembly_ (1840-41),
78, 79. The court may declare contracts void on the grounds named
in 1827, "or for any other cause for which marriage is annulled
by the ecclesiastical law" (78).
[183] Act of March 18, 1848: _Acts of Assembly_ (1847-48), 165-67.
[184] _Va. Code_ (1849), 561. Probably the abandonment or
desertion is for a time less than five years, as the latter
period is sufficient for a divorce _a vinculo_: _Code_ (1860),
530, and note. On joint application of the parties and due
evidence of reconciliation, a decree of separation may be revoked
by the same court granting it; and when three years have elapsed
without reconciliation after such a decree, the court may grant
a full divorce: _Acts_ (1895-96), 103; modified by _ibid._
(1902-3), 87, 98.
By the present law, which, with a slight modification in 1872 and
another in 1894, has remained unaltered since the act of 1853,
eight causes for complete dissolution of wedlock are recognized;
and jurisdiction in all suits for divorce, annulment, or separation
is vested in the "circuit and corporation courts on their chancery
side." An absolute decree may be obtained (1) for adultery; (2)
natural or incurable impotency of body existing at the time of
entering into the marriage contract; (3) where either party is
sentenced to confinement in the penitentiary; (4) where prior to
the marriage either party, without the knowledge of the other, has
been convicted of an infamous offense; (5) "where either party
charged with an offence punishable by death or confinement in
the penitentiary has been indicted, is a fugitive from justice,
and has been absent for two years;"[185] (6) where either party
wilfully deserts or abandons the other for three years; (7) "where
at the time of the marriage, the wife, without the knowledge of the
husband, was _enceinte_ by some person other than the husband;" (8)
or where prior to the marriage she had been, without the husband's
knowledge, notoriously a prostitute. But it is especially provided
that for the last two causes no divorce shall be decreed if it
appears that the person applying has cohabited with the other after
gaining knowledge of the facts. The same is true of "conviction of
an infamous offence;" and under the third cause, that of sentence
to the penitentiary, a pardon shall not restore the offender to
conjugal rights.[186]
[185] This cause was added by the act of March 23, 1872: _Acts of
the Assembly_ (1871-72), 418, 419.
[186] _Code of Va._ (1887), 561: _Acts of the Assembly_
(1852-53), 47, 48. The term of desertion was reduced from five to
three years by _Acts_ (1893-94), 425.
In West Virginia the circuit court on its chancery side may grant
total divorce for eight causes. Of these the first four are
identical with the corresponding numbers for Virginia. The rest
are: (5) where either party wilfully abandons or deserts the other
for three years; (6 and 7) the same as the seventh and eighth for
Virginia; (8) where the husband, prior to the marriage, has been,
without knowledge of the wife, notoriously a licentious person--thus
dealing even justice to each spouse. Furthermore, five grounds of
limited divorce are there sanctioned. The first four are the same
as those existing in Virginia since 1849; and in addition a fifth
cause gives jurisdiction when either the husband or wife after
marriage becomes a habitual drunkard.[187]
[187] _Code of West Va._ (1891), 612, 613; _ibid._ (1900),
660-62. It is provided that "a charge of prostitution made by the
husband against the wife falsely shall be deemed cruel treatment,
within the meaning of this section."--_Code_ (1900), 662. The
penalties for bigamy do not extend to a person forming a new
marriage when the husband or wife has been absent seven years and
not heard from: _ibid._, 971.
Kentucky anticipated by many years the mother-commonwealth of
Virginia in defining the grounds for dissolving a marriage.[188]
Under the act of 1809 the several circuit courts are authorized to
grant total divorce to either spouse (1) for abandonment and living
in adultery, or (2) where the other has been condemned for a felony
in any court of record in the United States; to the husband, when
the wife has voluntarily left his bed and board for three years
with the intention of abandonment; and to the wife, for treatment
so cruel, barbarous, and inhuman as actually to endanger her life.
To prevent too facile action of the courts, a check is devised
similar to that later adopted by the English law. It is made the
duty of the attorney prosecuting for the commonwealth to oppose
the granting of any divorce warranted by this statute.[189] A new
cause of full divorce, analogous to that allowed in some of the New
England states, appears in 1812. When a man renounces the marriage
agreement and refuses to live with his wife in conjugal relation "by
uniting himself to any sect whose creed, rules, or doctrines require
a renunciation of the marriage covenant, or forbid a man and wife
to dwell and cohabit together," the aggrieved woman may have a full
release; the offender is forbidden to remarry during the former's
lifetime; or the wife may claim separate alimony and maintenance
without divorce.[190]
[188] As early as 1800 separate maintenance is secured to the
wife in certain cases. It is enacted "that any court of quarter
sessions or district court, shall be vested with jurisdiction
to hear and determine applications from wives against their
husbands for alimony, in cases where the husband has, or may
hereafter desert or abandon his wife for the space of one year
successively, or where he lives in open avowed adultery with
another woman for the space of six months, and in cases of cruel,
inhuman, and barbarous treatment."--_Digest of the Stat. Laws
of Ky._ (1834), I, 121. Such cruel treatment warrants alimony
even when life is not endangered: 2 J. J. MARSHALL, 324; but not
divorce: _ibid._, 322.
"Before the passage of the above act, the chancellor had power
to grant alimony, and since the statute it may be decreed in
cases not embraced by it."--_Digest_ (1834), I, 121, note.
"After a decree for alimony, the power of the husband over the
wife shall cease;" and she may use such alimony, and acquire and
dispose of any property, "without being subject to the control,
molestation, or hindrance" of the husband, as if she were a _feme
sole_: _ibid._, I, 122. The two kinds of common-law divorce,
in canonical sense, were originally recognized in Kentucky:
HUMPHREY, _Compendium of the Common Law in Force in Ky._ (1822),
135.
[189] LITTELL, _Statute Law of Kentucky_ (1814), IV, 19, 20.
[190] Act of Feb. 8, 1812: LITTELL, _loc. cit._, 407 ff. In case
of divorce, the wife may not marry again within one year (409).
No further legislation regarding the grounds of divorce appears
until the foundation of the existing law of Kentucky was laid in the
act of 1843. The present statute presents an exceedingly complex
analysis of causes. "A jury shall not be impaneled in any action
for divorce, alimony, or maintenance, but courts having general
equity jurisdiction may grant a divorce for any of the following
causes, to both husband and wife": I. To either party: (1) for "such
impotency or malformation as prevents the conjugal relation;" (2)
living apart without any cohabitation for two consecutive years.
II. To the party not in fault: (1) for abandonment for one year;
(2) living in adultery; (3) condemnation for felony within or
without the state; (4) concealment of any loathsome disease existing
at the time of the marriage, or contracting such afterwards; (5)
force, duress, or fraud in obtaining the marriage; (6) uniting with
any religious society whose creed and rules require renunciation
of the marriage covenant, or forbid husband and wife to cohabit.
III. To the wife, if not in like fault: (1) for confirmed habit
of drunkenness on the part of the husband of not less than one
year's duration, "accompanied with a wasting of his estate, and
without any suitable provision for the maintenance of his wife and
children;" (2) "habitually behaving toward her by the husband, for
not less than six months, in such cruel and inhuman manner as to
indicate a settled aversion to her, or to destroy permanently her
peace or happiness;" (3) "such cruel treatment or injury, or attempt
at injury, of the wife by the husband, as indicates an outrageous
temper in him, or probable danger to her life, or great bodily
injury from remaining with him." IV. To the husband: (1) when the
wife is pregnant by another man without the husband's knowledge
at the time of the marriage; (2) for habitual drunkenness on the
part of the wife of not less than one year's duration, if he is not
guilty of the same fault; (3) for adultery of the wife, or such
lewd, lascivious behavior on her part as proves her to be unchaste,
without actual proof of adultery committed.
A judgment of divorce in all cases "authorizes either party to marry
again;" but, by a unique provision, "there shall not be granted to
any person more than one divorce, except for living in adultery, to
the party not in fault, and for the causes for which a divorce may
be granted to both husband and wife." On joint application of the
parties, every judgment for a divorce may be annulled by the court
rendering it, they being restored to the condition of husband and
wife; but thereafter a second divorce cannot be obtained for the
same cause.
Separation from bed and board may originally have been obtainable
in Kentucky under the common law:[191] but it does not seem to be
noticed by any of the early statutes. For the first time, by the
present code, it may be granted on any of the grounds which warrant
a total divorce, or for "such other cause as the court in its
discretion may judge sufficient."[192]
[191] HUMPHREY, _Compendium of the Common Law, in Force in Ky._,
135, above cited.
[192] For the present law of divorce see _Ky. Stat._ (1903),
846-51; and compare the act of March 2, 1843: _Acts_ (1842-43),
29, 30.
Previous to 1842 the function of the Maryland courts in divorce
matters was restricted to the preparation of cases for the
legislature. By the act of that year full, though not exclusive,
jurisdiction in both kinds of divorce is conferred upon the
chancellor and upon the county courts sitting as equity tribunals.
Divorce _a vinculo_ is permitted (1) for impotence of either person
at the time of the marriage; (2) "for any cause which by the laws
of the state renders a marriage null and void _ab initio_;" (3) for
adultery; (4) for abandonment with absence from the state for five
years. The causes for which divorce _a mensa et thoro_ is granted
are (1) cruelty of treatment; (2) excessively vicious conduct; (3)
abandonment and desertion; (4) in all cases where a total divorce
is prayed for, if the causes proved be sufficient for such limited
decree under the act.[193] In 1844 the term of absence as cause of
complete divorce is reduced to three years.[194] Three years later a
fifth cause appears. Complete dissolution of wedlock is now allowed
when the female before marriage has been guilty of illicit carnal
intercourse with another man without the husband's knowledge.[195]
The five grounds of total divorce thus recognized are the only
ones still sanctioned by the existing code; although under the
fourth head it is provided, in more detail, that a decree shall be
rendered only when the court is satisfied by competent testimony
that there has been uninterrupted abandonment for at least three
years, that such abandonment is deliberate and final, and that the
separation of the parties is "beyond any reasonable expectation
of reconciliation."[196] Likewise the same four causes of partial
divorce, laid down in 1842, still appear in the statute-book, and
in such cases the decree may be "forever" or "for a limited time,"
as shall seem just to the court. The equity tribunals now possess
exclusive jurisdiction in all divorce matters.[197]
[193] _Code of Md._ (1888), I, 143.
[194] Act of March 1, 1842: _Laws_ (1841-42), chap. 262.
[195] _Laws_ (1844), chap. 306.
[196] _Laws_ (1846-47), chap. 340 (act of March 10, 1847);
MACKALL, _Maryland Code_ (1861), I, 74, 75. The causes of limited
divorce and the other provisions of the act are the same as in
that of 1842.
[197] _Laws_ (1888), chap. 486, modifying an act of 1872, chap.
272, which is the basis of the present law in _Code of Md._
(1888), I, 142, 143.
The North Carolina statute of 1814 allows the superior court to
grant either kind of divorce (1) for bodily infirmity, or (2) for
desertion and living in adultery. Separation from bed and board is
likewise sanctioned when "any person shall either abandon his family
or maliciously turn his wife out of doors, or by cruel or barbarous
treatment endanger her life, or offer such indignities to her person
as to render her condition intolerable or life burdensome."
Previous to 1827, as already noted, the judicial decree for partial
divorce was final, while that for absolute dissolution of the
marriage bond must be confirmed by the assembly. On the abolition
of legislative divorce in that year a provision was inserted in
the statute which seems to have had the effect of an "omnibus"
clause. "All applications for other causes than those specified"
in the act of 1814 for either kind of divorce "shall be subject
to the rules and regulations provided in said act for the causes
therein mentioned," thus giving the judiciary the full range which
the assembly had hitherto possessed.[198] Later this clause took
a simpler form, the courts being empowered to grant divorces on
the grounds named in 1814 and for "any other just cause."[199]
Six grounds subsequently added are retained in the present law.
The superior courts are now authorized to decree absolute divorce
(1) "if either party shall separate from the other and live in
adultery;" (2) "if the wife shall commit adultery;" (3) "if either
party at the time of the marriage was and still is naturally
impotent;" (4) "if the wife at the time of the marriage be pregnant"
by some other man and the husband be ignorant of the fact; (5) "if
the husband shall be indicted for a felony and flee the state
and does not return within one year from the time the indictment
is found;" (6) "if after the marriage the wife shall wilfully and
persistently refuse" marital duty for twelve months; (7) if either
spouse shall abandon the other and live separate and apart for
two years; and (8) in favor of the wife, being a citizen of the
commonwealth at the time of the marriage, if the husband shall
remove with her to another state, and while living with her there
shall by cruel or barbarous treatment endanger her life or render
her condition intolerable or burdensome, should she return to North
Carolina and there reside separate and apart from the husband for
the period of twelve months.[200] A divorce from bed and board may
be granted (1) if either spouse shall abandon his or her family; (2)
or shall maliciously turn the other out of doors; (3) or shall by
cruel or barbarous treatment endanger the life of the other; (4) or
shall offer such indignities to the person of the other as to render
his or her condition intolerable and life burdensome; (5) or shall
become a habitual drunkard.[201]
[198] _North Carolina Acts_ (1827-28), 20. _Cf._ the preceding
section of the text.
[199] _Rev. Stat. of N. C._ (1837), 238-42.
[200] The first three causes appear in _Public Laws_ (1871-72),
339; the fourth is added by _ibid._ (1879), chap. 132, p. 240;
the fifth by _ibid._ (1887), chap. 100, p. 190; the sixth by
_ibid._ (1889), chap. 442, pp. 422, 423; the seventh by _ibid._
(1903), 846, amending an act in _ibid._ (1899), 337, which made
the term of desertion one year; and the eighth by _ibid._ (1899),
124, 125. The seventh cause applies only to cases occurring
before Jan. 1, 1903. The offender divorced for the seventh cause
may not rewed in five years; and he must have been a resident of
the state for the same period.
[201] The five causes of partial divorce are in _Public Laws_
(1871-72), 339, 340. _Cf._ _Code of N. C._ (1883), I, 514.
With the exception of one or two peculiar provisions, the law of
Tennessee, enacted in 1799, is similar to that of the parent state
North Carolina, adopted fifteen years later, although confirmation
by the assembly is not required. A total divorce may be granted
by the superior court (1) for bodily infirmity at the time of
marriage; (2) bigamy; (3) when either consort "hath been guilty of
acts and deeds inconsistent with the matrimonial vow, by adultery,
or wilful and malicious desertion or absence without a reasonable
cause, for the space of two years." In all cases the innocent person
may remarry; but when the cause is long absence, he does so at his
peril. For, as in Pennsylvania, should he contract a second marriage
and thereafter the missing first spouse prove to be alive, a cruel
Enoch Arden clause offers to the "party remaining single" at his
return the option either of having his former wife restored or his
marriage with her dissolved. By the same statute a divorce from bed
and board may be allowed when (1) the husband "shall maliciously
abandon, or (2) turn his wife out of doors; or (3) by cruel or
barbarous treatment endanger her life; or (4) offer such indignities
to her person as to render her condition intolerable, and thereby
force her to withdraw." In such cases the court may grant the
wife alimony, not exceeding one-third either of the husband's
income or of his estate, as may seem just; and such alimony shall
continue until a reconciliation takes place, or until the husband
by his petition shall "offer to cohabit with her again, and use
her as a good husband ought to do." Then the court may suspend the
decree; or, if the wife refuse, may discharge and annul it at its
discretion. Should the husband after reconciliation fail to keep
his engagements, the decree of separation is to be renewed and the
arrears of alimony paid.[202]
[202] SCOTT, _Laws of Tenn., Including those of North Carolina
Now in Force_ (1821), I, 645-48 (act of Oct. 26, 1799).
A new cause was added in 1819, the husband being allowed a total
divorce when the woman at the time of the marriage was pregnant with
a "child of color."[203] The act of 1835 recognizes practically
the same causes for limited divorce as were prescribed in 1799,
although they are differently expressed; and the separation may
now be granted "forever" or for a "limited time," as shall seem
just and reasonable to the court. By this statute likewise the
grounds of total divorce are in substance identical with those of
1799, except that a new cause is added. Whenever a person has in
good faith removed to the state and become a citizen thereof, and
has resided there two years, he may secure a total divorce should
his wife wilfully and without reasonable cause refuse to accompany
him; provided he proves that he earnestly tried to get her to live
with him after separation and that he did not come to the state for
the sake of procuring the divorce.[204] So also in 1840 a female of
good character who has resided in the state during the two years
next preceding her petition, may be released from her husband for
desertion during that period, or for any legal cause of divorce,
although such cause may have accrued in another state.[205] Four
years thereafter it is declared that a marriage may be dissolved
when one party is "guilty of an attempt upon the life of the
other," either by trying to poison, "or by any other means shewing
malice."[206]
[203] _Laws_ (1819), chap. 20; _Stat. Laws_ (1831), I, 76.
[204] _Laws_ (1835), cited in CARUTHERS AND NICHOLSON,
_Compilation of the Stat. of Tenn._ (1836), 257-62.
[205] Act of Jan. 7, 1840: _Acts_ (1839-40), chap. 54, p. 90.
[206] Act of Jan. 27, 1844: _Acts_ (1843-44), chap. 176, pp. 200,
201.
With some further important changes in 1858 and 1868, the law of
Tennessee, as it now stands, was completed. Ten causes of absolute
divorce are at present sanctioned: (1) natural and continued
impotency of body; (2) knowingly entering into a second marriage
in violation of a previous contract still existing; (3) adultery
by either spouse; (4) "wilful or malicious desertion, or absence
of either party without a reasonable cause for two whole years;"
(5) conviction of any crime which by the laws of the state renders
the offender infamous; or (6) which by the same law is declared to
be a felony, with sentence to confinement in the penitentiary; (7)
an attempt upon the life of husband or wife by poison or any other
means showing malice; (8) refusal on the part of the wife to remove
with her husband to the state, wilfully thus absenting herself for
two years; (9) pregnancy at the time of the marriage by another
man without the husband's knowledge; (10) habitual drunkenness,
when either spouse has contracted the habit after marriage.[207] A
limited divorce, or a total divorce in the discretion of the court,
may be granted to the wife (1) when the husband is guilty of cruel
and inhuman treatment; or (2) of such conduct as renders it unsafe
and improper for her to cohabit with him and be under his dominion
and control; (3) when he has offered such indignities to her person
as to render her condition intolerable and thereby forced her to
withdraw; (4) when he has abandoned her; or (5) turned her out of
doors and refused or neglected to provide for her support.[208]
These causes, it will be noticed, are very nearly the same in
substance as those named in 1799; and, as in 1819, separation may
still be decreed for a limited time.
[207] _Code of Tenn._ (1884), 611; SHANNON, _Code_ (1896), 1042.
The fifth and sixth causes appear in _ibid._ (1858), 483; the
tenth, in _Acts_ (1867-68), chap. 68.
[208] _Code of Tenn._ (1884), 611, 612. In SHANNON, _Code_
(1896), 1043, these are combined under three heads.
The history of divorce in Georgia has already been brought down to
1849, when resort to the assembly was finally forbidden. By the act
of the next year specific causes for either kind of divorce are for
the first time enumerated. After obtaining the concurrent verdict
of two juries a total divorce may be decreed for (1) intermarriage
within the Levitical degrees of consanguinity; (2) mental incapacity
or (3) impotency at the time of the marriage; (4) force, menace, or
duress in obtaining the marriage; (5) pregnancy of the woman at the
time of the marriage by another man without the husband's knowledge;
(6) adultery in either of the persons after marriage; (7) wilful and
continued desertion for the term of three years; (8) conviction of
either spouse of an offense involving moral turpitude, under which
the offender is sentenced to imprisonment in the penitentiary for
two years or longer. Besides these, certain "discretionary" grounds
are approved. In case of cruel treatment or habitual drunkenness
on the part of either, the jury in its discretion may determine
whether the divorce shall be absolute or limited. A general clause
declares that all grounds other than those named in the act shall
"only be cause for divorce from bed and board." In case of adultery,
desertion, cruel treatment, or intoxication, a decree may not be
granted when there is collusion or both parties are guilty of the
same offense.[209] At the beginning of the century, the law of 1850,
so far as the causes of full divorce and the discretionary grounds
are concerned,[210] is still in force; while, in addition, the
present statute simply authorizes a separation from bed and board on
"any ground which was held sufficient in the English courts prior
to the fourth of May, 1784."[211] By the existing constitution the
superior court still has jurisdiction; and for total dissolution of
wedlock the concurrent verdicts of two juries at different terms of
the court are essential to a decree.[212]
[209] Act of Feb. 22, 1850: COBB, _Digest_ (1851), 226; _Acts_
(1849-50), 151, 152.
[210] Except that "fraud" is added to the fourth cause.
[211] _Code of Ga._ (1896), II, 224 ff. Instead of "Levitical,"
"prohibited" degrees is now used.
[212] Const. of 1877, Art. VI, secs. 4, 15, 16: _N. Y. Convention
Manual_, Part II, Vol. I, 427, 431. _Cf._ Const. of 1865, Art.
IV, sec. 2; 1868, Art. V, secs. 2, 3: POORE, _Charters_, I, 409,
420, 422.
In case of partial divorce one jury is sufficient: Const. of
1877, Art. VI, sec. 15; and such seems to have been the earlier
practice: 16 _Ga._, 81; _Code of Ga._ (1882), 394, note. A juror
may be challenged for "conscientious scruples" regarding divorce:
_Code_ (1882), 397. This last-named provision appears in the act
of Dec. 22, 1840: COBB, _Digest_ (1851), 225, 226.
The grounds on which marriage may be annulled or dissolved were in
1803 first defined for the region of Alabama by the territorial
assembly. The courts having equity jurisdiction were then
authorized to grant total divorce for (1) intermarriage within the
forbidden degrees; (2) natural impotency of body; (3) adultery;
(4) "wilful, continued, and obstinate desertion, for the term of
five years." Bigamous marriages were, of course, void from the
beginning. Separation from bed and board was allowed on the sole
ground of extreme cruelty in either of the parties; but in neither
kind of divorce was a decree permitted where there was proof of
collusion.[213] In 1820, the year after the admission of the state
to the Union, the circuit courts gained jurisdiction and were given
power to render decrees of total divorce, subject to legislative
appeal, on the following grounds: I. In favor of the husband: when
the wife (1) is "taken in adultery;" (2) has voluntarily left his
bed and board for the space of two years with the intention of
abandonment; (3) has deserted him and lived in adultery with another
man. II. In favor of the wife: when the husband (1) has left her
during the space of two years with the intention of desertion;
(2) has abandoned her to live in adultery with another woman; (3)
when his treatment of her is "so cruel, barbarous, and inhuman as
actually to endanger her life."[214] The provisions of this act
were considerably modified in 1824;[215] but in 1832 they were
restored, except that the period of abandonment for either partner
was then fixed at three years.[216] A new cause was sanctioned in
1843, a total divorce being then allowed for pregnancy of the wife
by another man at the time of the marriage, if without the husband's
knowledge or consent;[217] and habitual drunkenness on the part of
either was added to the list in 1870.[218]
[213] Act of March 10, 1803, passed by the Mississippi
territorial legislature: _Digest of the Laws of Ala._ (1823), 252.
[214] Act of Dec. 21, 1820: _Digest_ (1823), 256.
[215] Act of Dec. 23, 1824: _Acts_ (1824), 61, 62.
[216] AIKIN, _Digest_ (1833), 130-32.
[217] CLAY, _Digest of Laws of Alabama_ (1843), 172; also in
_Acts_ (1843), 27.
[218] _Acts_ (1869-70), 207, 208 (March 1).
The basis of the existing law of Alabama was laid in the act of
1852, although important additions to the causes were subsequently
made. The court of chancery now has power to grant a divorce from
the bond of wedlock according to the following complex scheme: I.
In favor of either spouse: (1) when at the time of the contract the
other is "physically and incurably incapacitated from entering into
the marriage state;" (2) for adultery; (3) for voluntary abandonment
for two years; (4) for imprisonment in any state penitentiary for
two years, the sentence being for seven years or longer; (5) for
a crime against nature; (6) for "becoming addicted after marriage
to habitual drunkenness."[219] II. In favor of the husband: for
pregnancy of the wife, as provided in 1843. III. In favor of the
wife: "when the husband has committed actual violence on her person,
attended with danger to life or health, or when from his conduct
there is reasonable apprehension of such violence." The chancellor
is further authorized to decree a separation from bed and board for
cruelty[220] in either of the consorts, or for any cause which will
justify a decree from the bonds of matrimony, if the person applying
therefor desires only a partial divorce.[221]
[219] _Code of Ala._ (1887), 253; _ibid._ (1897), 491-95. The
first four of these causes appear in _Code_ (1852), 378; the
fifth and sixth in the act of 1870.
[220] For interpretation of "cruelty" see 23 _Alabama_, 785;
27 _Alabama_, 222; 28 _Alabama_, 315; 30 _Alabama_, 714; 44
_Alabama_, 670, 698.
[221] _Code of Ala._ (1887), 524-26; _ibid._ (1897), 492. The
causes of full divorce mentioned under II and III appear in
_Code_ (1852), 378.
The law of March 10, 1803, beginning the history of divorce
legislation for Alabama, applies also to Mississippi during the
territorial stage; and, five years after the state was erected,
its provisions, so far as they relate to the causes and kinds
of divorce, were re-enacted in 1822.[222] In 1840 the time of
desertion to warrant a total divorce was shortened from five to
three years.[223] Ten years thereafter it was provided that any
person already having a separation from bed and board may, by
application to the chancery court of the district or the circuit
court of the county where he resides, and producing a transcript of
the decree, be divorced from the bond of matrimony. For the future
the same privilege is extended to each of the parties to a partial
divorce when they "have lived separate and apart from each other
for the term of four years."[224] By a statute of 1858 this term is
reduced to three years; and only those who have thus lived apart
after partial separation are now allowed to petition for the entire
dissolution of the marriage bond.[225] But in 1860, apparently to
meet special cases, a law provides simply for a divorce _a vinculo_
where the persons, prior to the act, have lived apart in the state
four years without collusion.[226] A peculiar cause, a product of
the Civil War, appears in 1862. The wife is then allowed a complete
divorce when her husband is in the army or navy of the United States
or resides in one of the United States in preference to one of
the states of the Confederacy.[227] By a statute of 1863 a second
marriage is valid when the first spouse has been five years absent;
and such spouse is to be presumed dead in any question of alimony
arising under the second marriage.[228] In 1867 any citizen marrying
out of the state, whose spouse commits adultery before his return to
the state, may after such return apply for a total divorce, provided
he has not cohabited after discovery of the offense.[229] The causes
of separation from bed and board, which had remained unaltered since
1803, were extended in 1857. A partial divorce is then allowed for
habitual drunkenness, as well as for extreme cruelty in either
person; while the wife is granted the same relief whenever the
husband, being of sufficient ability, wantonly and cruelly fails
to provide for her support; but a decree for partial separation
shall in no case bar the right to full divorce from the bond of
wedlock.[230] A very important relaxation in the law takes place in
1871. The two causes of partial divorce just mentioned--habitual
drunkenness and cruel treatment--become grounds for total divorce;
and the term of desertion is shortened from three to two years.[231]
[222] _Stat. of Miss. Ter._ (1816), 252-54; and act of June 15,
1822, in _Code of Miss._ (1848), 495, 496.
[223] Act of Feb. 13: _Laws_ (1840), 125.
[224] Act of Feb. 14: _Laws_ (1850), 122.
[225] Act of Nov. 29: _Laws_ (1858), 166.
[226] Act of Feb. 9: _Laws_ (1860), 202.
[227] Act of Jan. 29, 1862: _Laws_ (1861-62), 246.
[228] Act of Dec. 1, 1863: _Laws_ (1862-63), 125, 126.
[229] Act of Feb. 21, 1867: _Laws_ (1866-67), 387.
[230] _Rev. Code_ (1858), 334.
[231] By the _Rev. Code_ (1871): see WRIGHT, _Report_, 154; and
WILLCOX, _The Divorce Problem_, 52.
By the present code of Mississippi, therefore, limited divorce is
not authorized. But courts having chancery jurisdiction may decree
entire release from the marriage bond to the injured person (1) for
natural impotency; (2) adultery, except by collusion or where there
is cohabitation after knowledge of the offense; (3) sentence to the
penitentiary when there is no pardon before imprisonment begins;
(4) wilful continued, and obstinate desertion for two years; (5)
habitual drunkenness; (6) "habitual and excessive use of opium,
morphine, or other like drug;" (7) habitual cruel and inhuman
treatment;[232] (8) insanity or idiocy at the time of the marriage,
if the party complaining did not then know of the infirmity; (9)
previous marriage with some other person; (10) pregnancy of the
wife by another man at the time of the marriage, the husband being
ignorant of the fact; (11) intermarriage within the degrees of
kindred prohibited by law.[233]
[232] For interpretation of "cruel treatment" see Johns _v._
Johns, 57 _Miss._, 530.
[233] _Ann. Code of Miss._ (1892), 419, 420.
The first statute defining the grounds of divorce for Missouri
was approved in 1807 by the legislature of Louisiana Territory.
Either a full or a partial divorce was then authorized when either
person (1) is naturally impotent; (2) has entered into the marriage
in violation of a "previous vow;" (3) has committed adultery; or
(4) has been guilty of wilful and malicious desertion, without a
reasonable cause, for four years. The general court may likewise
grant the wife a separation from bed and board when the husband
shall either abandon his family or turn her "out of doors, or by
cruel and barbarous treatment endanger her life, or offer such
indignities to her person as to render her condition intolerable
and thereby force her to withdraw from his house or family."[234]
This law remained in force until 1833, when "extreme cruelty" and
conviction of an "infamous crime" were added as causes warranting
either the husband or wife to petition for absolute divorce.[235]
The number is raised to seven by the revision of 1835, which is
silent as to partial divorce; for "indignities" to the person of
either such as already described are now made a legal ground for
entire dissolution of marriage.[236] Vagrancy[237] of the husband
and habitual drunkenness of either for the space of two years came
next in 1845; and four years thereafter the introduction of two more
causes completed the full quota of eleven grounds on which total
divorce is still allowed by Missouri law. The act of 1849 authorizes
a divorce to the man when the woman at the time of the marriage, or
when it was solemnized, was pregnant by another person without the
intended husband's knowledge; and to the wife, when the man prior to
the marriage or its solemnization had been convicted of a felony or
infamous crime without the woman's knowing it when the marriage took
place. The benefits of this cause may now accrue to both persons;
otherwise no essential change in the statute has been made for half
a century.[238]
[234] Act of May 13, 1807: _Laws of a Pub. and Gen. Nature_
(1842), 1, 90-92.
[235] _Ibid._, II, 360.
[236] _Rev. Stat._ (1835), 225 (Jan. 24). The "indignities" need
not be offered to the person: 5 _Missouri_, 278; 19 _Missouri_,
352; 16 _M. A._, 422; 17 _M. A._, 390; but one or two such acts
are insufficient: 34 _Missouri_, 211.
[237] According to the code, a "vagrant" is "every person who may
be found loitering around houses of ill-fame, gambling houses, or
places where liquors are sold or drunk, without any visible means
of support, or shall attend or operate any gambling device or
apparatus;" and "every able-bodied married man who shall neglect
or refuse to provide for the support of his family, and every
person found tramping or wandering around from place to place
without any visible means of support." Besides being liable to
suit for divorce, such a husband may be sentenced to not less
than twenty days in the county jail, or to pay a fine of 20
dollars, or both: _Rev. Stat._ (1889), I, 917; _ibid._ (1899), I,
621. On vagrancy as a cause see 26 _M. A._, 647.
[238] Act of March 12: _Laws_ (1849), 49, 50; _Rev. Stat._
(1889), I, 1029-32; _ibid._ (1899), I, 741. The circuit courts
have jurisdiction; and process is as in civil suits, except that
the answer of the defendant need not be under oath.
In Florida, since 1828, divorce may be sought only by bill in
chancery; and, since 1885, the equity courts have had exclusive
jurisdiction, granting only complete dissolution of the marriage
bond,[239] although in that state separate maintenance is equivalent
to separation from bed and board. The causes now sanctioned are: (1)
intermarriage within the forbidden degrees; (2) natural impotence of
the defendant; (3) adultery in either party; (4) excessive cruelty;
(5) habitual indulgence in violent and ungovernable temper;[240]
(6) habitual intemperance; (7) wilful, obstinate, and continued
desertion for one year; (8) a divorce obtained by the defendant in
any other state or country; (9) having a husband band or wife living
at the time of the marriage; (10) incurable insanity.
[239] Acts of Oct. 31, 1828, and Feb. 4, 1835, in _Rev. Stat. of
Fla._ (1892), 504; or THOMPSON, _Manual or Digest_ (1847), 47,
222-24. Incurable insanity is made a legal ground of divorce by
_Acts_ (1901), 118-21.
[240] On the allegations necessary see Johnson _v._ Johnson,
23 _Florida_, 413; Burns _v._ Burns, 13 _Florida_, 369; and on
what does not constitute a cause, Crawford _v._ Crawford, 17
_Florida_, 180.
The Louisiana code of 1808 provides for the annulment of marriage
on legal grounds; and allows separation from bed and board (1) for
adultery of the wife; or (2) for that of the husband "when he has
kept his concubine in their common dwelling;" (3) when either has
been guilty of excesses, cruel treatment, or outrages toward the
other, if the ill-treatment is of such a nature as to render their
living together insupportable; (4) on account of a public defamation
by one of the married persons toward the other; (5) for abandonment;
or (6) an attempt upon the life of the other by either spouse.[241]
[241] _Digest of Civil Laws Now in Force_ (1808), 26, 28, 30;
also _Code Civil_ (1825), 80, 87-91; LISLET, _Gen. Digest_, II, 3
ff.; _Civil Code of La._ (1853), 19.
In 1827 the "district courts throughout the state and the parish
court of New Orleans" were given "exclusive original jurisdiction
in cases of divorce," with appeal to the supreme court. They were
authorized to grant total divorce (1) for adultery of the wife;
or (2) for that of the husband "when he has kept his concubine in
the common dwelling, or openly and publicly in any other;" (3)
for excesses, cruel treatment, or outrages, as conditioned for
separation in 1808; (4) condemnation of either married person to
an "ignominious punishment;" (5) abandonment for five years when
the offender has "been summoned to return to the common dwelling,"
as is provided for in cases of separation from bed and board. It
is, however, especially declared that, except when the cause is
adultery or ignominious punishment, no full divorce shall be granted
"unless a judgment of separation from bed and board shall have been
previously rendered," and unless two years shall have thereafter
expired without reconciliation. But in the two cases excepted above
a "judgment of divorce may be granted in the same decree which
pronounced the separation from bed and board."[242] The fifth cause
approved in 1827 was supplemented by a new ground in 1832. Whenever
either spouse is charged with an infamous crime and is a fugitive
from justice beyond the state, a total divorce may be claimed by the
other, without need of a previous decree of separation, on producing
evidence of the actual guilt and flight of the accused.[243]
"Habitual intemperance" on the part of either husband or wife was
added to the list in 1855;[244] and in 1857 the time which must
elapse between the decrees for partial and full divorce was reduced
to one year.[245] An "omnibus" clause comes next in 1870, complete
dissolution of wedlock being then permitted "for any such misconduct
repugnant to the marriage covenant as permanently destroys the
happiness of the petitioner;" but it was repealed in 1877.[246]
[242] Act of March 19: _Acts_ (1827), 130-35; also in _Civil
Code_ (1853), 19, 20. Such is still the law, except as to the
term between the decrees.
[243] Act of April 2: _Acts_ (1832), 152; also in _Civil Code_
(1853), 20, 21.
[244] _Acts_ (1855, March 14), 376.
[245] Act of March 16: _Acts_ (1857), 137; VOORHIES, _Rev. Stat.
Laws_ (1876), 313.
[246] Compare the act of March 9: _Acts_ (1870), 108; with _Acts_
(1877), 192. VOORHIES, _op. cit._ (1884), 204-6, gives the law
regarding the causes of divorce just as _ibid._ (1876), 312-14;
and _ibid._ (1870), 18 ff.
For the sake of convenience, the present law of Louisiana covering
the grounds of divorce--whose evolution was thus completed in
1870--may now be summarized. Absolute divorce, without need of a
previous decree of separation, is permitted where the husband or
wife may have (1) been sentenced to an infamous punishment; or
(2) been guilty of adultery.[247] A limited divorce, which may
be followed in each case by a total divorce after one year, is
authorized (1) for adultery on the part of either spouse; (2) when
the other party has been condemned to an infamous punishment; (3) on
account of the habitual intemperance of one of the married persons;
(4) excesses, cruel treatment, or outrages of one of them toward the
other; (5) for public defamation; (6) for abandonment on the part
of one of the married persons; (7) for an attempt of one of them
against the life of the other; (8) when the husband or wife has been
charged with an infamous offense and shall have fled from justice,
on producing proof of the actual guilt or flight.[248] An important
modification was made in 1898. The person in whose favor a limited
divorce has been rendered may apply and get a full divorce in one
year, while the adverse party must wait two years before fore he can
secure a similar decree, in the meantime the wife's right to alimony
remaining unimpaired.[249]
[247] As in 1827, in these cases, a divorce may be "granted in
the same decree which pronounces the separation from bed and
board."
[248] _Rev. Civil Code_ (1888), 68 ff.; _ibid._ (1897), 305,
306; _ibid._ (1870), 18 ff. _Cf._ WRIGHT, _Report_, 97, 98.
The habitual intemperance (Cause 3) and cruel treatment (Cause
4) must still be of "such a nature as to render their living
together insupportable."
"The abandonment (Cause 6) with which the husband or wife is
charged must be made to appear by the three reiterated summonses
made to him or her from month to month, directing him or her to
return to the place of the matrimonial domicile and followed by
a judgment which has sentenced him or her to comply with such
request, together with a notification of the said judgment,
given to him or her from month to month for three times
successively."--_Rev. Civil Code_ (1888), 70.
[249] Act of July 4, 1898: _Acts of the Assembly_, 34.
The divorce legislation of the "Republic of Texas" has remained in
force with little modification to the present hour. The district
courts still have jurisdiction. By the act of January 6, 1841, a
marriage may be declared null and void for impotency; and absolute
divorce may be granted as follows: I. In favor of the husband:
(1) when the wife is guilty of adultery; or (2) has left his bed
and board for three years with the intention of abandonment. II.
In favor of the wife: (1) when the husband has left her for three
years with like intention; or (2) has abandoned her and lived in
adultery with another woman. III. In favor of either spouse for
excesses, cruel treatment, or outrages toward the other, if the
ill-treatment is of such a nature as to render their living together
insupportable.[250] These three groups appear unaltered in the
present code; and there is added the following: IV. In favor of
either husband or wife, "when the other shall have been convicted,
after marriage, of a felony and imprisoned in the state prison;
_provided_, that no suit for divorce shall be sustained" because
of such conviction "until twelve months after final judgment," nor
"then if the governor shall have pardoned the convict;" and provided
also that the conviction has not been obtained on the testimony of
either spouse.[251]
[250] _Laws of the Rep. of Texas_, V, 19-22; also in DALLAM,
_Digest_ (1845), 80, 81. _Cf._ the earlier act of 1837, in
DALLAM, _op. cit._, 79.
[251] _Rev. Civil Stat._ (1888), I, 885-88; _Ann. Civil Stat._
(1897), I, 1095, 1096. No. IV was added by act of May 27, 1876:
_Laws_, 16.
The grounds of divorce recognized in the statutes of Arkansas have
been in force since 1838. The circuit courts may now grant total or
limited divorce for the following causes: (1) when either spouse
was at the time of the marriage and still is impotent of body; (2)
when either deserts the other and remains absent one year without
reasonable cause; (3) when a former spouse was living at the time
of the marriage; (4) when either is convicted of felony or other
infamous crime; or (5) shall be addicted to habitual drunkenness
for the space of one year; or (6) shall be guilty of such cruel and
barbarous treatment as to endanger the life of the other; or (7)
shall offer such indignities to the person of the other as shall
render his or her condition intolerable; (8) when subsequent to the
marriage either person has committed adultery.[252]
[252] _Digest of Ark._ (1894), 680-83; _Rev. Stat._ (1838), 333.
Incurable insanity appears as a ground in _Civil Code_, sec. 464,
as amended in 1873; but it was dropped by _Acts_ (1895), 76.
By act of Congress,[253] certain general laws of Arkansas, including
those of divorce, are extended to the Indian Territory; so the
causes just enumerated are there in force.[254] Limited divorce does
not exist in Oklahoma; but in that territory the district court
may grant full dissolution of wedlock (1) when either person had
a spouse living at the time of the marriage; (2) for abandonment
during one year; (3) for adultery; (4) for impotency; (5) "when the
wife at the time of the marriage was pregnant by another than her
husband;" (6) for extreme cruelty; (7) for fraudulent contract; (8)
for habitual drunkenness; (9) for gross neglect of duty; (10) for
conviction and imprisonment in the penitentiary for a felony after
marriage.[255]
[253] Act of May 2, 1890: _U. S. Stat. at Large_, XXVI, chap.
182, p. 81.
[254] _Ann. Stat. of Ind. Ter._ (1899), 324.
[255] WILSON, _Stat. of Okla._ (1903), II, 1119.
"Arizona, from 1871-77, in addition to six ample reasons for
divorce, had an 'omnibus clause' in operation which is a marvelous
piece of legislation." "Whereas," we are told, "in the developments
of future events, cases may be presented before the courts falling
substantially within the limits of the law, as hereinbefore stated,
yet not within its terms, it is enacted, that whenever the judge
who hears a cause for divorce deems the case to be within the reason
of the law, within the general mischief the law is intended to
remedy, or within what it may be presumed would have been provided
against, by the legislature establishing the foregoing causes of
divorce had it foreseen the specific case and found language to meet
it without including cases not within the same reason, he shall
grant the divorce." Well was this called, continues Richberg, "the
'seventh wonder' of Arizona's divorce code."[256]
[256] RICHBERG, "Incongruity of the Divorce Laws in the United
States," _Publications of Mich. Pol. Sc. Association_, No. 4, p.
58.
For this act of Feb. 16, 1871, see _Comp. Laws of the Ter. of
Ariz., 1864-71_ (1871), 303, 304. The other six causes referred
to in the text are (1) impotency; (2) marriage of a female under
fourteen without parental consent and not ratified by her after
reaching that age; (3) adultery in either without collusion
or subsequent voluntary cohabiting; (4) extreme cruelty, or
habitual intemperance, wilful desertion for one year, or neglect
to provide for the wife; (5) force or fraud; (6) conviction of
either of felony after marriage. For the earlier law see the
_Howell Code_, 232 ff.; and the amendments of 1865, in _Comp.
Laws_ (1871), 297-303.
A later statute, somewhat more cautiously, allows the district court
to decree a total divorce (1) when the husband or wife is guilty
of excesses, cruel treatment, or outrage toward the other, whether
by the use of personal violence or any other means; (2) in favor
of the husband when his wife shall have been taken in adultery; or
(3) when she has voluntarily left his bed and board for the space
of six months with the intention of abandonment; (4) in favor of
the wife when the husband has left her for the same time with a
like motive; (5) for his habitual intemperance; (6) for his wilful
neglect to provide the necessaries or comforts of life during the
same period, having sufficient ability, or failing to do so by
reason of his idleness, profligacy, or dissipation; or (7) when he
shall be taken in adultery; (8) in favor of either spouse when the
other has been convicted after marriage of a felony and confined in
any prison. Suit on the last-named ground cannot be sustained until
six months after final judgment, nor when the husband or wife was
convicted on the testimony of the other.[257] This law is superseded
by the act of 1903. Absolute divorce may now be granted on complaint
of the aggrieved for (1) adultery; (2) physical incapacity; (3)
conviction and imprisonment for felony, provided that suit may not
be sustained until one year after judgment and that conviction has
not been had on the testimony of either spouse; (4) wilful desertion
for one year, or for habitual intemperance; (5) excesses, cruel
treatment, or outrages, whether by the use of personal violence or
any other means; (6) to the wife for the husband's neglect for one
year to provide her with common necessaries of life, having the
ability, or his failure to do so because of idleness, profligacy,
or dissipation; (7) to either for the other's conviction of felony
before marriage without the innocent person's knowledge; (8) to the
husband when without his knowledge the wife was pregnant by another
man at the time of the marriage.[258]
[257] _Rev. Stat. of Ariz._ (1887), 373, 374; _cf._ WRIGHT,
_Report_, 90. By the act of 1871 the period of desertion is fixed
at one year; and it is two years by the _Howell Code: Compiled
Laws_ (1871), 298, 304.
[258] _Rev. Stat. of Ariz._ (1901), 812-15; amended by _Acts_
(1903), 52.
In New Mexico the district courts may grant absolute divorce for
(1) abandonment; (2) adultery; (3) impotency; (4) when without
the husband's knowledge the wife at the time of the marriage was
pregnant by another man; (5) cruel and inhuman treatment; (6)
to the wife for the husband's neglect to support; (7) habitual
drunkenness; (8) conviction and imprisonment for felony subsequent
to the marriage.[259] Separation _a mensa et thoro_ does not exist;
but in the laws of 1884 there is a curious provision, which seems
designed, in a truly patriarchal spirit, to soothe domestic ills
and check matrimonial transgressions through intervention of the
local magistrate. One is left in little doubt as to the right ideal
of family life, being assured that "the duties and relations that
should exist between married persons are the following, to wit: The
husband is the head of the family; he, nevertheless, owes fidelity,
favor, support, and protection to the wife; he should make her a
participant in all the conveniences he enjoys; he should show her
the utmost and every attention in cases of sickness, misfortune or
accident, and provide for her the necessaries of life according to
his condition and ability; and the wife owes fidelity and obedience
to the husband; she is obliged to live with him and accompany him
to such place as he may deem proper and advantageous to make his
residence." So when any difficulty arises on account of failure
in any of these things, the injured person may go before the
justice of the peace in his "precinct and make complaint demanding
judicial action." Then the magistrate "shall forthwith dispatch
his compulsory writ directing the party defendant immediately to
appear to such complaint; both parties being present, it shall be
the duty of the justice to endeavor to effect a reconciliation,
the first of which endeavors he shall enter on record upon his
docket, affording the parties a reasonable opportunity; but if after
having so done, the person making the complaint does not agree, the
justice shall then proceed to try the matter in a summary manner,
provided always, that the reasons for disagreement are simple,
such as non-fulfillment" of the duties above set forth. In "case
of conviction he shall cause the delinquent to act as required by
the laws of the conjugal relation;" and when there is resistance
he "may order that such person be confined in the county jail,
there to remain until he comply with those duties by which both
the husband and wife were mutually bound." Furthermore, it is
especially provided, that when any persons are thus put in jail "for
an infraction of duty" and fail to "furnish their own provision,"
the sheriff may "dispose of their services for their maintenance."
Should, however, the trouble "arise from adultery, or cruelty,
or ill temper, rendering the life of the consort insecure, the
justice ... shall, after due investigation send the case up to the
district court which shall take cognizance of and try the same;"
and "whenever a temporary separation occurs between husband and
wife in order to bring suit before the district court, the justice
of the peace will provide how the family shall be cared for, and
will immediately report to the probate judge of the county, so that
the latter may provide for the care of the minors, their support
and education, as also for the wife, in case she be the injured
party, during the controversy or until otherwise provided for by the
district court."[260] It is not, perhaps, surprising that this whole
subject is omitted from the compilation of 1897.
[259] _Acts of N. M._ (1901), 116 ff. For the earlier laws see
_Acts of the Ass. of N. M._ (1886-87), 68; _Comp. Laws_ (1897),
407. In case of permanent separation, without a dissolution of
marriage, either spouse may institute a suit for division of
property or disposal of the children; or the wife may bring suit
for alimony alone: _ibid._, 116.
[260] _Compiled Laws of N. M._ (1885), 514, 516.
By the code of Porto Rico the district court has jurisdiction.
Partial divorce is not recognized; but marriage may be dissolved, on
the petition of the aggrieved, for (1) adultery; (2) conviction of
felony, which may involve the loss of civil rights; (3) "habitual
drunkenness or the continued and excessive use of opium, morphine,
or any other narcotic;" (4) cruel treatment or gross injury; (5)
abandonment for one year; (6) "absolute, perpetual, and incurable
impotence" occurring after marriage; (7) the "attempt of the husband
or wife to corrupt their sons or to prostitute their daughters," or
connivance of either in the same; (8) the proposal of the husband to
prostitute the wife.[261]
[261] _Rev. Stat. and Codes of Porto Rico_ (1902), 813-17.
The experience of South Carolina is peculiar. After abstaining from
any legislation on the subject for two hundred years, that state
indulged in a conservative divorce statute in 1872. Hitherto the
courts were competent only to grant separation from bed and board
under the common law. By the act in question they were empowered
to pronounce decrees of absolute divorce in favor of either spouse
(1) for adultery and (2) for abandonment[262] during the space of
two years.[263] But this law was of short duration, being repealed
in 1878.[264] South Carolina legal sentiment on the divorce problem
is fairly revealed in connection with two important decisions
during the century. Commenting on the case of Vaigneur _et al._
_v._ Kirk, decided in 1808, Editor Desaussure contrasts the laxity
of the marriage laws with the stringency of the rule relating to
divorce. "The subject of marriage, and consequently the legitimacy
of children, is on the same loose footing in this state that it
was in England before" 1753[265] and as "it now is in Scotland. We
have no statute regulating marriages, or providing any form for the
celebration of them, or for recording them. And they are usually
celebrated in any form the parties please, before a clergyman or
magistrate." This "remarkable facility of contracting matrimony ...
is strongly contrasted with the impracticability of dissolving the
contract. No divorce has ever taken place within the state. The
legislature has uniformly refused to grant divorces, on the ground
that it was improper for the legislative body to exercise judicial
powers. And it has as steadily refused to enact any law to authorize
the courts of justice to grant divorces _a vinculo matrimonii_, on
the broad principle that it was a wise policy to shut the door to
domestic discord, and to gross immorality in the community."[266]
[262] "Provided, that, when the suit is instituted by the party
deserting, it appears that the desertion was caused by the
extreme cruelty of the other party, or that the desertion of the
wife was caused by the gross or wanton and cruel neglect of the
husband to provide suitable maintenance for her, he being of
sufficient ability to do so" (p. 30).
[263] Act of Jan. 31: _Acts and Joint Res._ (1872), 30 ff.
[264] Repealed by act of Dec. 20: _Acts and Joint Res._ (1878),
719.
[265] Previous to 26 Geo. II., chap. 33.
[266] H. W. DESAUSSURE, in 2 _S. C. Equity Reports_, 644 (revised
edition).
With this view harmonizes the opinion of Justice Pope in McCreery
_v._ Davis rendered in 1894. While separation from bed and
board--the only form of divorce obtainable in the state--"is a
judicial barrier to any attempt to exercise the rights or enforce
the duties of the parties affected by the judgment, yet the courts
are only too willing to have the parties restored to their original
_status quo_, upon good cause shown. While the remedy is a hard
one, and to a certain extent interferes with the operation of
the laws of nature, still woman must be protected! After all, an
unbending adhesion to the laws of right living has a healthy effect
upon the lives of others. If self-denial is thus necessitated, it
should not be forgotten that many natures are perfected through its
beneficent influence. True philosophy would extract good from every
condition.... By art. IV, sec. 15, of our constitution, the courts
of common pleas have exclusive jurisdiction in all cases of divorce,
and by art. XIV, sec. 5, divorces from the bonds of matrimony
shall not be allowed but by the judgment of a court as shall be
prescribed by law. Thus the general assembly is denied the power
to grant divorces directly, but is permitted to clothe the courts
of common pleas with that power. This last they have refused to do
by repealing the act of 1872;" and thus "we have the common law
restored to us on this subject."[267]
[267] Opinion of Justice Pope in McCreery _v._ Davis, 44 _S. C.
Reports_, 195-227 (1894).
Finally it may be noted that the supreme court of the District of
Columbia has exclusive jurisdiction in all applications for either
full or partial separation. Until recently a divorce from the bond
of wedlock might be granted (1) when either spouse had a husband or
wife living at the time of the contract, "unless the former marriage
had been lawfully dissolved and no restraint imposed" on further
marriage; (2) when the marriage was contracted during the lunacy
of either party; (3) when either was matrimonially incapacitated at
the time of the marriage; or (4) has since committed adultery; (5)
for habitual drunkenness for a period of three years; (6) for cruel
treatment endangering the life or health of the complainant; or (7)
for wilful desertion and abandonment for two years. A divorce from
bed and board was allowed (1) for cruel treatment endangering life
or health; or (2) "reasonable apprehension, to the satisfaction of
the court, of bodily harm."[268] A new and drastic law was passed in
1901. Hereafter absolute divorce will be granted only for adultery,
the guilty person not being allowed to remarry. Legal separation
from bed and board may be obtained for (1) drunkenness, (2) cruelty,
or (3) desertion. Only residents may bring suit for divorce;
and unless the applicant has for three years been a _bona fide_
resident, no decree will be granted for a cause occurring outside
the District before such residence began.[269]
[268] _Comp. Stat. of D. C._ (1894), 275, 276.
[269] MOORE, _Code of D. C._ (1902), 199, 200.
_c_) _Remarriage, residence, notice, and miscellaneous
provisions._--Throughout the century, and especially during the
first half, many of the southern states have been conservative, even
severe, regarding the liberty of the person offending to remarry
after full separation; but in very few cases is any restraint put
upon the further marriage of the person in whose favor the decree
is granted. The divorce acts passed by the assembly of Virginia
sometimes expressly forbid the guilty person to contract further
wedlock during the lifetime of the former spouse.[270] The law of
1848, when the marriage bond is dissolved on account of infidelity,
authorizes the court in its discretion to allow both parties to
remarry or only the injured person, as may seem just.[271] Such
substantially is the present law. "In granting a divorce for
adultery, the court may decree that the guilty party shall not marry
again; in which case the bond of matrimony shall be deemed not to
be dissolved as to any future marriage of such party, or in any
prosecution on account thereof. But for good cause shown, so much of
any decree as prohibits the guilty party from marrying again, may
be revoked and annulled at any time after such decree, by the same
court by which it was pronounced."[272] No restraint appears to be
put upon the immediate remarriage of persons separated for other
causes.
[270] See the cases already cited, _Acts_ (1826-27), 126.
[271] Act of March 18, 1848: _Acts of the Assembly_ (1847-48),
165, 166.
[272] _Code of Va._ (1887), 562.
The early statutes and the decrees for full divorce in individual
cases passed by the assembly of Maryland, by their silence on the
subject, appear to contemplate the further marriage of the persons
at pleasure. The law of 1872, however, is somewhat conservative.
"In all cases where a divorce _a vinculo matrimonii_ is decreed
for adultery or abandonment, the court may, in its discretion,"
forbid the guilty party to "contract marriage with any other person
during the lifetime" of the injured spouse, the bond of marriage not
being dissolved, but remaining in full force with respect to such
offender.[273] This restriction is now omitted from the code.[274]
In the District of Columbia the guilty person may not remarry except
with the former spouse.[275]
[273] Act of April 1: _Laws_ (1872), chap. 272, p. 445.
[274] The _Code of Md._ (1888) seems to be entirely silent as to
remarriage.
[275] _Comp. Stat. of D. C._ (1894), 275 ff., allowing entire
freedom; superseded by the act of 1901: MOORE, _Code_ (1902),
199, 200.
Formerly the law of North Carolina was stringent in this regard. The
act of 1814 permits the "complainant or innocent person" to "marry
again as if he or she had never been married;" leaving us to infer,
perhaps, that the defendant was not allowed such liberty.[276] In
1828 it is squarely enacted that "no defendant or party offending,
who shall be divorced from the bonds of matrimony ... shall ever
be permitted to marry again."[277] This rule stands in sharp
contrast with the policy of the later law. First the prohibition was
restricted to the lifetime of the aggrieved.[278] Next, in 1869,
the term was reduced to two years.[279] From 1871 to 1895 no check
whatever was put upon the further marriage of either spouse, whether
guilty or innocent;[280] but now in case of wilful desertion the
guilty defendant may not rewed in five years, or during the lifetime
of the plaintiff, if divorced for the eighth cause above considered.
[276] _Laws_ (1814), chap. 5; and HAYWOOD, _Manual_ (1819),
176. The same provision appears in _Laws of the State of N. C._
(1821), II, 1294.
[277] _Acts_ (1827-28), 20.
[278] _Rev. Code_ (1855), chap. 39, sec. 17, p. 254.
[279] Act of April 7, 1869: _Pub. Laws_, 323.
[280] All restriction is removed by _Laws_ (1870-71), chap. 193,
sec. 46, p. 343; also in _Code of N. C._ (1883), I, 518.
The Georgia statute approved in 1806 allows remarriage when a
contract is nullified under the principles of ecclesiastical law;
but denies the privilege to the person whose "improper or criminal
conduct" is the cause of an absolute divorce, so long as the
innocent consort lives.[281] This rule long remained in force;[282]
but under the existing code a rather peculiar procedure is adopted.
The jury according to whose final verdict a decree of absolute
divorce is granted determines the rights and disabilities of the
parties, including the question of remarriage, subject to the
revision of the court; but provision is made for subsequent removal
of the disabilities thus imposed. On proper application, notice
of which must be published in a newspaper for sixty days, with
twenty days' personal notification to the other divorced person if
still living and residing in the county, the question of granting
relief is submitted to a new jury, "who shall hear all the facts,
and if, in their judgment, the interest of the applicant or of
society demands the removal of such disabilities," shall so find;
and the person relieved shall then be allowed to form a second
marriage as if no former contract had ever existed. At the trial
the divorced person or any citizen of the county may resist the
application; but should no person appear for this purpose, then "the
solicitor-general shall represent the state, with full power to
resist the same, as in ordinary divorce cases."[283]
[281] _Compilation of Laws of Ga._ (1812), 313.
[282] For instance, see HOTCHKISS, _Codification_ (1845), 331;
COBB, _Analysis_ (1846), 294 ff.; COBB, _Digest_ (1851), 226 ff.
[283] _Acts_ (1872), 14; _ibid._ (1879), 51; also in _Code of
Ga._ (1896), II, 29, 30. A "verdict of divorce in 1866 will not
authorize the guilty party to marry again without proof of a
decree of court authorizing to marry."--62 _Ga._, 408.
By the Tennessee statute of 1799 no restraint is put upon immediate
remarriage in any case of divorce, except where the cause is
infidelity, when the guilty defendant may not marry the person
with whom the crime was committed during the lifetime of the
former spouse.[284] This provision still appears unchanged in the
code.[285] The offender is dealt with in precisely the same way
by the Kentucky law of 1809; and by it also the injured spouse is
permitted to marry again only after two years.[286] In 1820 the
innocent person is relieved from all restraint;[287] both parties
are treated as "single" persons in 1843;[288] and likewise by
the present statute, in all cases of divorce, no matter what the
cause, guilty and innocent alike are absolutely free to form new
marriages whenever it shall please them so to do.[289] The same
freedom exists in Arizona, New Mexico, Arkansas, Indian Territory,
Texas, West Virginia, and Missouri; although in the last-named
state until 1885 the guilty defendant was not permitted to remarry
for five years, "unless otherwise expressed in the decree of the
court."[290] Since 1857, in Mississippi, by a more stringent clause
"the decree may provide, in the discretion of the court, that a
party against whom a divorce is granted because of adultery shall
not be at liberty to marry again;" but the freedom of the successful
plaintiff is unrestrained.[291] In 1824 the Alabama assembly in all
cases forbade the guilty person to remarry; but this prohibition was
removed by an act of February, 1870, which, however, lasted only
until April, 1873, when it in turn was repealed. By the existing
code the chancellor in making his decree may, according to the
evidence and nature of the case, direct whether the party, against
whom the decree is rendered, shall be permitted to marry again;
and in decrees now or hereafter rendered, when no order is made
allowing or disallowing the divorced person to remarry, he may on
petition and proper proof allow or disallow the petitioner to form a
new marriage.[292] It is constituted bigamy in Oklahoma for either
divorced person to remarry within six months after the divorce, or
until thirty days after final judgment, if appeal be taken. Every
decree of divorce shall recite that it "does not become absolute and
take effect until the expiration of six months" from the day when it
was rendered.[293] According to the Louisiana law, since 1808--at
least until 1888--the wife cannot remarry until ten months after
dissolution of the contract, whether by death, divorce, or decree
of nullity.[294] In case of divorce for infidelity the offender may
not marry his or her accomplice; and this last provision has been in
force since 1827.[295] Under the same conditions as in Louisiana,
the woman in Porto Rico may not marry during a period of three
hundred and one days after dissolution of the marriage, or until
a child is born if she be pregnant at the time of the husband's
death.[296] By the criminal code of Florida, apparently, the guilty
party may not rewed.[297]
[284] Act of Oct. 26, 1799: SCOTT, _Laws of Tenn._ (1821), I, 647.
[285] _Code of Tenn._ (1884), 617; SHANNON, _Code_ (1896), 1050.
[286] LITTELL, _Stat. Laws of Ky._ (1814), IV, 20. This
restriction upon the defendant appears also in the act of 1812:
_ibid._, IV, 407-10.
[287] _Acts_ (1819-20), 896.
[288] Act of March 2, 1843: _Acts_ (1842-43), 29, 30.
[289] _Kentucky Stat._ (1899), 827.
[290] _Rev. Stat. of Ariz._ (1887), 374; _Comp. Laws of N. M._
(1897), 407 ff.; _Digest of Ark._ (1894), 680 ff.; _Ann. Stat.
of Ind. Ter._ (1899), 324-27; _Laws of the Rep. of Tex._ (act of
Jan. 6, 1841), V, 20; also _Rev. Civil Stat. of Tex._ (1888), I,
887; _Ann. Civil Stat._ (1897), I, 1095-1100; _Code of W. Va._
(1899), 660 ff.; also KELLY, _Rev. Stat. of W. Va._ (1878), I,
495. The five-year limit for Missouri is fixed by the act of Jan.
24, 1835: _Rev. Stat._ (1835), 226; and is retained in _Rev.
Stat._ (1845), 428; and _ibid._ (1879), I, 362; but it is struck
out by _Laws_ (1885), 159; and there is no restriction in _Rev.
Stat._ (1899), I, 741-44. But by the act of Jan. 31, 1833, it was
provided that "when one of the parties ... shall be divorced, it
shall ... be lawful for the other party to marry again, after
two years shall have expired."--_Laws of a Pub. and Gen. Nature_
(1842), II, 361.
[291] _Ann. Code of Miss._ (1892), 420; _Rev. Code_ (1857), 334.
[292] _Cf._ _Acts_ (1824), 61, 62; _ibid._ (1869-70), 76, 77;
_ibid._ (1872-73), 122; _Code of Ala._ (1897), 492, 493.
[293] _Stat. of Okla._ (1893), 876, 877; WILSON, _Statutes_
(1903), II, 1122.
[294] _Digest of Civil Laws_ (1808), 28; _Rev. Civil Code_
(1888), 68.
[295] _Rev. Laws_ (1897), 306; _ibid._ (1870), 21; _Acts_ (1827),
132, 134; Acts (1855), 376, 377.
[296] _Rev. Stat. and Codes of Porto Rico_ (1902), 860.
[297] _Rev. Stat. of Fla._ (1892), 820.
In all of the southern and southwestern states, except Louisiana
and, of course, South Carolina, a short term of residence is
required to qualify the plaintiff to bring suit. Virginia began with
a fairly cautious act in 1848. A definite term is not fixed; but a
petition for divorce must be brought in the court of the county,
city, or town where one of the parties lives, and when the plaintiff
has left the county or other place where the married persons dwelt
together, the "suit shall be instituted and heard in the court"
held for that same county, if the defendant lives there still. The
benefits of the act do not extend to any save _bona fide_ citizens
at the time of petition; nor to any case where the parties have
never lived together as citizens and as married persons in the
commonwealth; nor to any cause of adultery which shall have occurred
in any other state or country, unless the parties at the time of
such cause or before it took place were citizens of the state and
lived there together as husband and wife.[298] By the present
law no suit can be sustained unless one of the persons has been
domiciled in the state for at least one year before; and it must
be brought either in the county or corporation where the parties
last cohabited, or, at the option of the plaintiff, in that of the
defendant, if still a resident of the state; otherwise in the place
where the plaintiff dwells.[299]
[298] Act of March 18: _Acts of the Assembly_ (1847-48), 165, 166.
[299] _Code of Va._ (1887), 561.
The same rule as that of the parent state has existed in West
Virginia since 1882, when a year's residence of one of the persons
instead of mere residence at the time of the filing of the suit was
introduced.[300] In Georgia twelve months in the state and six in
the county for a divorce of either kind are required.[301] By the
laws of Kentucky and Arkansas the term of previous residence for the
plaintiff is also one year; and if the cause for divorce arose or
existed without the state, he must have been a resident of the state
at the time, unless it was also a ground of divorce where it existed
or arose. In each of these states "an action for divorce must be
brought within five years next after the doing of the act complained
of."[302] In Alabama, when the defendant lives outside the state,
the plaintiff must have been a _bona fide_ resident for one year
before bringing the action; or for three years when abandonment
is the cause alleged.[303] Since 1822 in Mississippi the term of
residence in the state for the applicant has been one year;[304]
although, in 1857, a divorce shall be denied when the parties have
never lived together as husband and wife in the state; as also for a
cause occurring elsewhere, unless prior to its occurrence they have
so dwelt together in the commonwealth. This last restriction does
not apply to a _bona fide_ citizen who marries abroad and does not
discover the cause of divorce until after return to the state; but
in case of desertion the term of _bona fide_ residence must be three
years.[305] An important change was introduced in 1863. It is then
sufficient to be a citizen of the state or a resident of it for one
year; but the applicant must make affidavit that he has not taken up
residence to obtain a divorce.[306] By the existing code the courts
of chancery may exercise jurisdiction only (1) when both persons
are domiciled in the state when suit is commenced; or (2) when the
complainant is so domiciled and the defendant is personally served
with process in the state; or (3) when one of the consorts is thus
domiciled and one or the other of them an actual resident for one
year before action began.[307]
[300] _Code of W. Va._ (1900), 662; _Acts_ (1882), chap. 60.
[301] Act of Oct. 20, 1891: _Acts_ (1890-91), 235.
[302] _Ky. Stat._ (1894), 769, 770; _Digest of Ark._ (1894), 681.
_Cf._ WRIGHT, _Report_, 80.
[303] _Code of Ala._ (1887), 525; _ibid._ (1897), 493.
[304] Act of June 15, 1822: _Code of Miss._ (1848), 495.
[305] _Rev. Code_ (1857), 335.
[306] Act of Dec. 1, 1863: _Laws_ (1862-63), 125, 126.
[307] _Ann. Code of Miss._ (1892), 421.
The time of residence for the petitioner is three years in the
District of Columbia; and two years in Florida.[308] It is also two
years in Tennessee, although the acts complained of were committed
out of the state, or the petitioner lived out of the state at the
time, and no matter where the defendant resides. A decree of divorce
in a foreign state granted to a citizen of Tennessee who has merely
temporarily transferred his residence there is void and will not
be recognized.[309] In Maryland, since 1842, a divorce will not be
granted when the cause occurs outside of the state, unless either
the plaintiff or the defendant has resided in the state for the two
preceding years.[310] By the North Carolina act of 1814 a stringent
rule was adopted, only a citizen resident in the state for three
years being allowed to sue.[311] At present the plaintiff must show
that the facts constituting the ground for divorce have existed
for at least six months prior to filing the complaint, and that
he has been a resident of the state for the preceding two years;
and if the wife be plaintiff, she may set forth "that the husband
is removing or about to remove his property and effects from the
state, whereby she may be disappointed in her alimony."[312] But
in case of desertion the term of previous residence is five years.
The period of previous residence for the plaintiff is six months in
the state and county in Texas;[313] one year within the territory
in New Mexico, Arizona, and Oklahoma;[314] while in Missouri it is
one year, unless the offense or injury complained of was committed
within the state, or when one or both of the persons resided there.
In all cases when the proceedings are _ex parte_, the court "shall,
before granting the divorce, require proof of the good conduct of
the petitioner and be satisfied that he or she is an innocent or
injured" person.[315] In Arkansas and Indian Territory the plaintiff
must "allege and prove" (1) "residence in the state for one year
next before the commencement of the action:" (2) that the cause of
divorce occurred or existed in the state, or, if out of the state,
either that it was a legal cause there or that the applicant's
residence was then in the state; (3) that the cause of divorce
occurred or existed within five years before the suit began.[316]
One year's residence is likewise required in Porto Rico, unless the
act complained of was committed in the island or while one of the
consorts resided there.[317]
[308] _Rev. Stat. of Fla._ (1892), 504. But by the act of May 19,
1899, "when the defendant has been guilty of adultery in this
state," then any citizen of the state, being the aggrieved, may
get a divorce at any time, the two years' previous residence not
being required: _Acts and Res._ (1899), 117. _Cf._ _Comp. Stat.
of D. C._ (1894), 276, requiring two years; superseded by the act
of 1901: MOORE, _Code_ (1902), 200.
[309] _Code of Tenn._ (1884), 612; SHANNON, _Code_ (1896), 1044
n. 2. Earlier the condition was citizenship and residence for one
year: Act of Oct. 26, 1799: SCOTT, _Laws_ (1821), I, 647; same in
1835, except the petitioner may have been absent on business or
for health: CARUTHERS AND NICHOLSON, _Compilation_ (1836), 260;
also see 5 _Yerg._, 203. A male citizen bringing suit for divorce
must give bond and security for costs: _Acts_ (1891), chap. 221,
p. 433. On divorce in a foreign state see 3 _Lea_, 260.
[310] _Code of Md._ (1888), I, 144; _cf._ _Laws_ (1841-42), chap.
262; _Laws_ (1843), chap. 287; _Laws_ (1886), chap. 10.
[311] _Laws_ (1814), chap. 5; HAYWOOD, _Manual_ (1819), 177;
_Laws_ (1821), II, 1294, 1295.
[312] _Code of N. C._ (1883), I, 575. See WRIGHT, _Report_, 83;
_Pub. Laws_ (1903), 846.
[313] The plaintiff must also be a _bona fide_ resident of the
state: _Rev. Civil Stat. of Tex._ (1888), I, 886; _Ann. Civil
Stat._ (1897), I, 1097.
[314] By act of Congress, May 25, 1896: _Stat. at Large_, XXIX,
136, not less than one year's previous residence in any of the
territories is required to entitle the plaintiff to bring suit
for divorce. See _Rev. Stat. of Ariz._ (1901), 813; _Acts of N.
M._ (1901), 117; WILSON, _Stat. of Okla._ (1903), II, 1119.
[315] _Rev. Stat. of Mo._ (1889), I, 1030; _ibid._ (1899), I,
742, 743. This provision for residence appears in the statutes
from 1835 onward: _Rev. Stat._ (1835), 225; _ibid._ (1845), 427;
_ibid._ (1879), 361; and the period is one year by the act of May
13, 1807; _Laws of Pub. and Gen. Nature_ (1842), I, 92.
[316] _Digest of Ark._ (1894), 681; _Ann. Stat. of Ind. Ter._
(1899), 325. The statute does not contemplate "constructive"
residence; and applies to limited as well as absolute divorce:
see Wood _v._ Wood, 54 _Ark._, 172; 15 _S. W._, 459.
[317] _Rev. Stat. and Codes of Porto Rico_ (1902), 814.
A few of the states under consideration have adopted special
provisions governing notice to the defendant. Thus in Louisiana,
"when the defendant is absent, or incapable of acting for any
cause, an attorney shall be appointed to represent him, against
whom, contradictorily, the suit shall be prosecuted."[318] In North
Carolina, if personal service cannot be made, the court may order
service by publication, as in any other actions.[319] By the law
of Tennessee, process is authorized as in chancery cases. If the
wife is the petitioner, the suit may be heard and decided without
service, either personal or by publication, if the bill was filed
and the subpoena placed in the hands of the sheriff of the county
in which the suit is instituted three months before the time when
the subpœna is returnable; but the officer having the subpœna shall
execute it if he can.[320] In New Mexico service of process can be
made by publication after obtaining an order from a judge of the
supreme court, based on an affidavit showing the present residence
of the defendant, if known, or last known place of residence, and
efforts made to ascertain the present residence. The order for
publication shall direct that a copy of the summons be mailed to
the present or last known residence of the defendant, and may
direct such other means of bringing the action to the knowledge of
the defendant as the judge shall deem proper.[321] Until recently
Florida had a still different law. If the defendant is absent from
the state, so that ordinary process cannot be served, or, if served,
he cannot be compelled to appear and answer or plead, the court may
order a hearing on the bill, a copy of such order to be published in
some public newspaper of the state, for the space of three months at
least, or for a longer time, if the court shall so direct, or a copy
of the bill and order for the hearing, certified by the clerk of the
court, shall be actually served upon or delivered to the defendant
at least three months before the day fixed for the hearing, or for
a longer time, as the court may determine. The present statute,
however, directs simply that process be served as in other chancery
suits.[322] This is the rule also in Virginia, West Virginia,
Maryland, Mississippi, Arkansas, and Indian Territory; likewise in
Georgia when the defendant is a non-resident; and in Alabama, where,
if the defendant is a non-resident, publication is essential.[323]
In the District of Columbia process is according to the usual course
of equity and the rules adopted by the court. Missouri requires
process as in other civil actions; and this is the law in the
remaining states and territories of the group.[324]
[318] _Rev. Civil Code of La._ (1888), 69; _ibid._ (1870), 19.
[319] _Code of N. C._ (1883), I, 81, 82; WRIGHT, _Report_, 88.
[320] _Code of Tenn._ (1884), 613; WRIGHT, _Report_, 88.
[321] _Comp. Laws_ (1897), 408.
[322] Compare _Rev. Stat. of Fla._ (1892), 505; WRIGHT, _Report_,
87.
[323] _Code of Va._ (1887), 561; _Code of W. Va._ (1900), 662;
_Code of Md._ (1888), 142; _Ann. Code of Miss._ (1892), 421;
_Code of Ga._ (1882), 395; _ibid._ (1896), II, 227; _Digest of
Ark._ (1894), 681; _Ann. Stat. of Ind. Ter._ (1899), 325. See
WRIGHT, _Report_, 85-89.
By the Alabama Act of Dec. 14, 1898, in case of a decree _pro
confesso_ taken in the chancery court, the evidence having been
taken and the cause being ready for decree, and no defense being
interposed, if the complainant or his solicitor shall file a
written request to the register or the clerk of the court to
deliver the papers in the suit to the chancellor or judge, at the
same time submitting his note of testimony in the case, then the
chancellor shall render a decree in term time or in vacation:
_Gen. Laws of Ala._ (1898-99), 118.
[324] _Rev. Stat. of Mo._ (1899), I, 742; _Rev. Stat. of Ariz._
(1887), 373 ff.; _ibid._ (1901), 439; _Rev. Civil Stat. of Tex._
(1888), I, 885 ff.; _Stat. of Okla._ (1893), 875; WILSON, _Stat.
of Okla._ (1903), II, 1120; MOORE, _Code of D. C._ (1901), 21.
The miscellaneous provisions are much the same as in the other parts
of the United States. Usually, in case of divorce, the legitimacy of
the children is expressly acknowledged.[325] Sometimes provision
is made for trial by jury, as in Georgia, Texas, and North
Carolina;[326] or it is carefully forbidden, as in Kentucky;[327]
and the law may permit the woman to resume her maiden name, as in
Arkansas, Kentucky, Indian Territory, Oklahoma, Mississippi, and the
District of Columbia.[328] Furthermore, in the District of Columbia,
a disinterested attorney must be assigned to resist the decree in
uncontested cases, or in any suit when the court sees fit;[329] and
similar laws exist in Louisiana and Kentucky. Arbitration in place
of judicial divorce is prohibited in Louisiana;[330] the married
persons are allowed to be witnesses in Texas, Oklahoma, North
Carolina,[331] and formerly in Florida; and occasionally provision
is made for the annulment of the decree by further process before
the courts.[332]
[325] For example, by _Code of Va._ (1887), 620; _Code of W. Va._
(1891), 666; _ibid._ (1900), 713; _Code of N. C._ (1883), I,
518; _Code of Ga._ (1896), II, 230; _Rev. Stat. of Fla._ (1892),
505; _Rev. Stat. of Ariz._ (1901), 814; _Rev. Civil Stat. of
Tex._ (1888), I, 887; _Ann. Civil Stat. of Tex._ (1897), I, 1099;
_Comp. Stat. of D. C._ (1894), 276, 277.
[326] _Code of Ga._ (1882), 396; _Rev. Civil Stat. of Tex._
(1888), I, 886; _Ann. Civil Stat. of Tex._ (1897), I, 1097; _Code
of N. C._ (1883), I, 516.
[327] _Ky. Stat._ (1894), 767.
[328] _Digest of Ark._ (1894), 683; _Ann. Stat. of Ind. Ter._
(1899), 327; _Stat. of Ky._ (1894), 772; _Rev. Stat. of Mo._
(1899), I, 740; _Stat. of Okla._ (1893), 876; WILSON, _Stat. of
Okla._ (1903), II, 1121; _Comp. Stat. of D. C._ (1894), 277;
MOORE, _Code of D. C._ (1902), 200.
[329] MOORE, _Code of D. C._ (1902), 201.
[330] _Rev. Civil Code of La._ (1888), 69.
[331] _Laws of Tex._ (1897), 49; _Code of N. C._ (1883), I, 516;
_Stat. of Okla._ (1893), 877, 878; WILSON, _Stat. of Okla._
(1903), II, 1123: _Acts and Res. of Fla._ (1885), 24.
[332] As by _Kentucky Stat._ (1894), 770, 771; _Digest of Ark._
(1894), 683; _Ann. Stat. of Ind. Ter._ (1899), 327; _Code of Va._
(1887), 562, 563; _Code of W. Va._ (1891), 614; _ibid._ (1900),
663.
_d_) _Alimony, property, and custody of children._--The statutes of
these states contain the usual provisions for the protection and
support of the wife and children during the suit for divorce; and
sometimes the husband is required to furnish money to defray the
wife's expenses in the same. The Virginia law authorizes the court
in term or the judge in vacation to make an order compelling the
"man to pay any sums necessary for the maintenance of the woman and
to enable her to carry on the suit, or to prevent him from imposing
any restraint on her personal liberty, or to provide for the custody
and maintenance of the minor children" during the litigation. In
the same way steps may be taken to preserve the estate of the
husband, "so that it may be forthcoming to meet any decree," even
compelling him to give security to abide by the decision.[333] North
Carolina also grants the wife alimony _pendente lite_; but an order
allowing it shall not be made "unless the husband shall have had
five days' notice;" and in all cases of application for alimony it
is admissible for him to be heard by affidavit in answer to the
allegations made by the complainant. If he has abandoned his wife
and left the state, or is in parts unknown, or is about to remove
or dispose of his property for the purpose of defeating her claims,
a notice is not required.[334] Arkansas and Indian Territory allow
similar support during the suit, including attorney's fees.[335] By
the Louisiana statute, "if the wife who sues for a separation" from
bed and board, or for a divorce, "has left or declared her intention
to leave the dwelling of her husband, the judge shall assign the
house wherein she shall be obliged to dwell until the determination
of the suit." She "shall be subject to prove her said residence as
often as she may be required to do so, and in case she fails so to
do, every proceeding on the separation shall be suspended." She is
entitled to alimony _pendente lite_, if she constantly resides in
the house assigned; and during the action, for the preservation
of her rights, she may require an inventory and appraisement to
be made of the property in the husband's possession and demand an
injunction restraining him from disposing of any part thereof. After
the commencement of the suit the husband may not contract a debt
on account of the community, nor sell the immovables belonging to
the same; such alienation being void, if made "with the fraudulent
view of injuring the rights of the wife." Custody of the children of
the marriage, "whose provisional keeping is claimed by both husband
and wife," belongs to the husband, whether plaintiff or defendant,
"unless there shall be strong reasons to deprive him of it;" but
when a separation from bed and board has been decreed, the "children
shall be placed under the care of the party who shall have obtained
the separation, unless the judge shall, for the greater advantage
of the children and with the advice of the family meeting, order
that some or all" of them be intrusted to the other spouse. In all
cases of full divorce "the minor children shall be placed under the
tutorship of the party who shall have obtained" the decree.[336]
[333] _Code of Va._ (1887), 562; _cf._ _Code of W. Va._ (1900),
662.
[334] _Code of N. C._ (1883), I, 517.
[335] _Digest of Ark._ (1894), 681; _Ann. Stat. of Ind. Ter._
(1899), 326.
[336] Rev. _Civil Stat. of La._ (1888), 70-72; _ibid._ (1870),
19-21; _ibid._ (1897), 306.
Permanent alimony and the custody of the children after dissolution
of marriage are generally provided for. Sometimes the wife is
granted separate alimony without a decree of divorce, as in
Virginia, Florida, Georgia, and Oklahoma.[337] From an early period
the North Carolina statutes have been conspicuous for the relief
granted to the wife after divorce, or, under certain circumstances,
without formal separation. Thus by the act of 1814 the court may
grant a woman having a limited divorce for cruelty or abandonment
such alimony as the husband's means will admit, not exceeding
either one-third of his real or personal estate or a like share of
the annual profits of his estate, occupation, or labor.[338] The
deserted wife gains still further protection in 1816. "Whereas,"
declares an act of that year, "cases of great hardship often occur,
the husband being at liberty to return and squander away the
estate of the wife, subsequently obtained;" to remedy the evil it
is therefore enacted that in future the decree of separation from
bed and board shall have the effect of securing to the wife "any
property which she may subsequently obtain, either by her own labor,
gift, devise, or operation of law, unless the court shall in their
judgment otherwise order."[339] Furthermore, in 1828-29 the courts
were authorized to grant the wife separate alimony without divorce
"whenever a man shall become an habitual drunkard or spendthrift,
wasting his substance to the impoverishment of his family."[340] The
present law is conceived in the spirit of these early enactments.
In case of separation from bed and board, the amount of alimony is
the same as in 1814. Separate maintenance without a divorce is still
allowed. "When any husband shall separate himself from his wife
and fail to provide her with the necessary subsistence according
to his means and condition in life, or if he shall be a drunkard
or spendthrift, the wife may apply for a special proceeding to the
judge of the superior court for the county in which he resides, to
have a reasonable subsistence secured to her and to the children of
the marriage." Finally it may be noted that alimony may be decreed
to the husband as well as the wife in Virginia and West Virginia.
[337] _Code of Ga._ (1896), II, 236; _Rev. Stat. of Fla._ (1892),
505; _Stat. of Okla._ (1893), 877; WILSON, _Stat. of Okla._
(1903), II, 1123; _Code of Va._ (1887), 562. _Cf._, for Virginia,
4 H. AND M., 507; 4 RAND., 662: 1 _Rob._, 608; 1 MINOR'S _Inst._,
282.
[338] _Laws of N. C._ (1814), chap. 5; HAYWOOD, MANUAL (1819),
174 ff. It may be noted that the act of 1814 lays on the party
"cast" in each divorce suit a tax of ten pounds payable to the
state: _ibid._, 177.
[339] _Acts_ (1816), chap. 33: also in HAYWOOD, _Manual_, 177,
178.
[340] _Acts_ (1828-29), 25.
Measures are taken in nearly every state for the division or
other disposal of property after separation or divorce. The North
Carolina law is very elaborate. "Every woman who shall be living
separate from her husband, either upon a judgment of divorce ...
or under a deed of separation, executed by said husband and wife,
and registered in the county in which she resides, or whose husband
shall have been declared an idiot or a lunatic, shall be deemed and
held ... a free trader, and shall have power to convey her personal
estate and her real estate without the assent of the husband."
So also "every woman whose husband shall abandon her, or shall
maliciously turn her out of doors, shall be deemed a free trader, so
far as to be competent to contract and be contracted with, and to
bind her separate property, but the liability of the husband for her
reasonable support shall not thereby be impaired, and she shall have
power to convey" her real and personal estate without her husband's
assent. When a marriage is dissolved _a vinculo_, each of the
parties loses all right to any estate by courtesy or dower, and all
right to a year's provision or a distributive share in the personal
property of the other, or to administer on the other's estate, and
all rights whatsoever in the other's estate gained by settlement in
consideration of the marriage. But if a "married woman shall elope
with an adulterer, or shall wilfully and without just cause abandon
her husband and refuse to live with him, and shall not be living
with" him at his death; or if a limited divorce be granted on the
husband's petition, "she shall thereby lose all right to dower in
the lands and tenements of her husband, and also all right to a
year's provision." In such cases the husband may convey his real
estate as if he were unmarried, and the wife is thereafter barred
of all claims to dower. When the husband is guilty of a similar
offense, and his conduct is not condoned by the wife, or in case a
partial divorce has been granted on her application, he shall suffer
the like penalties.[341]
[341] _Code of N. C._ (1883), I, 696, 700; and _Laws_ (1893),
chap. 153, pp. 114-16, amending _Laws_ (1871-72), chap. 193,
sec. 44. By the law of the District of Columbia, "in case of
adultery of the wife, committed after ... divorce from bed and
board, the court may, on petition of the husband ... deprive
the wife of alimony from the date of her said criminal act, and
rescind her right of dower, as well as dispossess her ... of the
care, custody, and guardianship" of any child awarded to her by
the original judgment: _Comp. Stat._ (1894), 277. _Cf._ MOORE,
_Code_, 201.
In Missouri a divorce obtained by the wife is considered in law as
the death of the husband, and she is looked upon as his widow; but
when at fault she is barred of dower.[342] The guilty wife loses
her right of dower also in Tennessee; and there she cannot claim
permanent alimony. In the same state, when divorce is for the wife's
infidelity, and the woman afterwards cohabits with her paramour, she
is made "incapable of alienating, directly or indirectly, any of her
lands;" and after her death these are to be distributed according
to the rules of intestate inheritance.[343] Dower is barred by
grant of permanent alimony in Georgia;[344] and in Louisiana, in
case of separation from bed and board, the defendant loses "all the
advantages or donations" which the plaintiff "may have conferred
by the marriage contract or since," while the latter preserves all
those to which he or she would otherwise have been entitled; and
these dispositions are to take place even when the advantages and
donations were "reciprocally made."[345]
[342] _Rev. Civil Stat._ (1889), I, 1036. _Cf._ 61 _Mo._, 148;
and 57 _Mo._, 200; 3 _M. A._, 321.
[343] _Code of Tenn._ (1884), 616, 617. "If the wife, at the
time of a decree dissolving the marriage, be the owner of any
lands, or have in her possession goods or chattels or choses in
action acquired by her own industry or given to her by devise or
otherwise, or which may have come to her, or to which she may
be entitled by the decease of any relative intestate, she shall
have entire and exclusive dominion and control thereof, and may
sue for and recover the same in her own name subject, however,
to the rights of creditors who became such before the decree
was pronounced." When "a marriage is dissolved at the suit of
the husband, and the defendant is owner, in her own right, of
lands, his right to and interest therein and to the rents and
profits of the same, shall not be taken away or impaired by the
dissolution."--_Ibid._, 616, 617. _Cf._ SHANNON, _Code_ (1896),
1050.
[344] _Code of Ga._ (1896), II, 237; and 43 _Ga._, 295. But in
case of _bona-fide_ separation without divorce alimony may be
granted: _Code_ (1882), 401: _ibid._ (1896), II, 235.
[345] _Rev. Civil Code_ (1888), 72, 73; _ibid._ (1870), 20.
In general, on all these provisions, see also _Code of Md._
(1888), I, 143, 144; _Rev. Civil Stat. of Mo._ (1899), I, 742,
743; _Code of Ga._ (1896), II, 230 ff.; _Ann. Code of Miss._
(1892), 420; _Digest of Ark._ (1894), 681 ff.; _Ann. Stat. of
Ind. Ter._ (1899), 325-27; _Stat. of Okla._ (1893), 875 ff.;
WILSON, _Stat. of Okla._ (1903), II, 1119-28; _Kentucky Stat._
(1903), 846-51; _Rev. Stat. of Ariz._ (1887), 374, 375; _ibid._
(1901), 814, 815; _Rev. Stat. of Fla._ (1892), 505, 506; _Rev.
Civil Stat. of Tex._ (1888), I, 886-88.
Finally it must be noted as a matter of regret that in no instance
in these states has any provision been made for the registration of
divorces or the return and publication of divorce statistics.
III. THE MIDDLE AND WESTERN STATES[346]
[346] In this section are analyzed the statutes of the following
twenty-six states, districts, and territories: Alaska,
California, Colorado, Delaware, Hawaii, Idaho, Illinois, Indiana,
Iowa, Kansas, Michigan, Minnesota, Montana, Nebraska, Nevada, New
Jersey, New York, North Dakota, Ohio, Oregon, Pennsylvania, South
Dakota, Utah, Washington, Wisconsin, and Wyoming.
_a_) _Legislative divorce._--An examination of the session laws
reveals the fact that legislative divorce has at some time
existed in many western commonwealths. During the territorial
stage, in particular, and in some cases for a considerable period
thereafter, the assemblies at each meeting were called upon to
hear and determine petitions for dissolution of marriage which
ought to have been relegated to the courts. Such, for example, was
the practice in Michigan until 1837, when it was forbidden by the
first constitution of the state;[347] and in Illinois until a later
time. At the session of 1817-18 the assembly of Illinois Territory
granted relief to Elizabeth Spriggs because she had been "shamefully
abandoned" by her husband, who, it is alleged, is still guilty
of "shameful" misconduct, and because she must be "considerably
injured if she cannot obtain a divorce sooner than in the ordinary
way."[348] Other cases occurred from time to time;[349] and in
1831 the marital bonds of twenty couples were dissolved by one
act of a few lines.[350] Indiana appears to have been nearly as
indiscreet. For instance, in 1838 the marriage of John Duvall and
Nancy Duvall, _alias_ Nancy Stack, was declared null and void.[351]
Two years later occurred a divorce from the bond of wedlock, the
wife being permitted to resume her maiden name. Thereafter it
became the practice in this state for the assembly to grant persons
leave to file bills in the courts in cases where the prescribed
causes for divorce by judicial process did not exist. Thus in 1842
Mary Ann Bruner was allowed to file a petition because of "her
disability by reason of her husband not having absented himself
from her for two years," the full term necessary to constitute a
valid ground according to the statute.[352] Until 1851, when the
constitution put a stop to this evil custom, many such applications
were referred to the circuit courts, the full legal requirement
being similarly waived.[353] The early Minnesota lawmakers found
plenty of business of the same kind. "Be it enacted," runs a decree
of the assembly in 1849, "that the marriage heretofore existing
between Catherine Hathaway and her husband, Isaac Hathaway, ...
is hereby dissolved; and the said parties are restored to all the
rights and privileges of unmarried persons."[354] Another example
seems to show that a "pale-face" cannot always live happily with a
"dusky mate." It is solemnly declared "that Louis Laramie is hereby
divorced from Wa-kan-ye-ke-win, his wife, as fully and effectually,
as if the legal ceremony of marriage and its rites had never been
solemnized."[355] Similar decrees appear in the statute-book until
in 1856 constitutional authority finally put a stop to legislative
interference.[356]
[347] Special divorce acts may be found in the _Ter. Laws of
Mich._, II, 655, 709, 710, 752, 753, 769; III, 840, 842, 847,
895, 901, 905 (three cases), 907 (two cases).
[348] _Laws of Ill._ (1817-18), 356.
[349] Thus on Jan. 15, 1825, two decrees were granted in one
bill: _Laws_ (1825), 120.
[350] Act of Feb. 15, 1831: _Laws_, 71, 72. There is another
example in _Laws_ (1839), 79.
[351] _Laws of a Local Nature_ (1838), 406.
[352] _Laws of a Local Nature_ (1842), 117.
[353] _Cf._ _ibid._ (1842), 119, 120, 121; _ibid._ (1844), 148;
_ibid._ (1849), 203, 300 (two cases); _ibid._ (1850), 105, 129,
194, 342, 344; _ibid._ (1851), 404, 441, 497.
[354] _Laws of Minn._ (1849), 89.
[355] _Ibid._
[356] For examples see _Laws_ (1851), 39, 40 (four cases); and
_ibid._ (1852), 60, 61 (two cases). Seven of the acts cited are
also given or restated in _Collected Stat. of the Ter. of Minn.
and Decis. of Supreme Court_ (1853).
During the first six years of territorial life many special
divorce decrees may be found in the Nebraska laws; and they are
invariably expressed in the curt and summary style peculiar to such
legislation throughout the country, no reference usually being
made to causes or to alimony.[357] At the same time Kansas was
having a similar experience. One divorce petition was granted by
the assembly in 1857, three in 1858, eight in 1859, while in 1860
the number suddenly rose to forty-three; for this was the "last
chance" before the constitutional prohibition of 1859 went into
effect.[358] Previous to 1847 Iowa was still more indulgent. Year
after year appeals were made to the assembly for relief. Sometimes
the intention appears to be to deny the defendant the privilege of
further wedlock; as in 1840, when a decree was granted to dissolve
the marriage contract, "so far as relates to the said Harriet
Williams," who is allowed to change her name. Sometimes a partial
divorce is sanctioned, as when the marital bond between John Philips
and Nancy his wife was "so far dissolved as to permit the said
parties to live separate and apart from each other." In this case
the woman was given power to sue and be sued, and was allowed to
retain the children. In 1841-42 eleven more legislative decrees were
granted. The next year saw nineteen petitions combined in one bill,
which was passed over the governor's veto by a two-thirds vote. The
last examples occur in 1846, the year when Iowa was admitted to
the Union as a state, and when the usual constitutional interdict
appears.[359]
[357] Here is an example: "The bonds of matrimony between Obediah
J. Niles and Hannah M. Niles shall be and the same are hereby
dissolved."--_Laws and Resolutions_, I, 373 (act of Feb., 1857).
For other cases see _ibid._, 569, 570 (two cases, 1858), 653-55,
656 (three cases, 1860), 766, 767 (two cases, 1861). On Jan. 23,
1856, six petitions in one bill were referred to the judge of
the district court for the first judicial district with power to
dissolve marriage: _ibid._, 300.
[358] _Private Laws of Kan._ (1860), 232-54. For other cases see
_ibid._ (1858), 10-12 (three cases); and _ibid._ (1859), 41-45
(eight cases).
[359] _Cf._ _Laws of Ia._ (1840), 12; _ibid._ (1840-41), 7, 12;
_ibid._ (1841-42), 3, 11, 13, 28, 30, 31, 66, 73, 94, 95 (eleven
cases); _ibid._ (1842-43), 82-84 (nineteen cases); _ibid._
(1845-46), 42, 48, 51, 52, 61, 72, 79 (eleven cases).
The practice existed also in Idaho,[360] Montana,[361] and
Oregon.[362] On the Pacific coast, however, Washington is the chief
offender. Beginning with three cases in 1858 and one in 1859, the
number mounts to fifteen in 1860, seventeen in 1861, fifteen in
1862, and sixteen in 1863; while after this date the session laws
are silent on the subject.[363]
[360] There are two cases in _Laws and Res._ (1871), 86, 91;
others in _Gen. Laws_ (1879), 54, 59-61; five in _ibid._ (1881),
439-41; and four in _ibid._ (1883), 164, 165.
[361] _The Private and Spec. Laws of Mont._ (1864-65), 554, 610,
685, 695, 699, 700, show nine cases of legislative divorce.
[362] For examples see _Spec. Laws_ (1857), 12; _ibid._
(1857-58), 107, 108, 110, 111, 112 (twelve cases); _ibid._
(1858-59), 92-107 (thirty-one cases).
[363] See _Acts_ (1858), 53, 54; _ibid._ (1859), 62; _ibid._
(1860: private laws), 473-79; _Session Laws_ (1861: local laws),
71, 73, 74, 81, 83, 92, 93, 101-3, 110, 131, 132; _ibid._ (1862),
Index; _ibid._ (1863), 138-44.
In some of the old middle states the custom was particularly
tenacious. Of it the New York laws show scarcely a trace;[364] and
in those of New Jersey no evidence at all has been discovered. The
case is very different in Pennsylvania. Although in 1785 the courts
were empowered to grant full or partial divorce for the causes
specified, the habit of resorting to the assembly, especially when
the offense complained of was not a cause recognized by the statute,
survived from the provincial era. Thus in 1805 Rebecca Adkinson
was released from her spouse Thomas, who for crimes committed had
been sentenced to five years' imprisonment. "Whereas it appears
that the conduct of the said Thomas, from the month of May, 1803,
to the present time, has been one continued scene of vice, evincing
a total dereliction of morality, and an entire neglect of his wife
and tender infant," therefore, since the law has not provided for
such emergency, the assembly sets Rebecca absolutely free from the
wedding bond.[365] During the next year a case of somewhat unusual
character arose. From the preamble to the bill it appears that as
early as 1777 Jacob Sell and Eve, his wife, had divorced themselves
by mutual consent, the woman by a written instrument relinquishing
all her rights under the marriage. Thereafter, the man considering
himself entirely free from former obligations, took unto himself
another wife, "by whom he now has living six children." Through
"hard labor and honest industry" a considerable property was in due
course acquired, some of which Sell had transferred. To this under
the existing laws he could not give perfect title because of a claim
to dower which "the aforesaid Eve may be supposed to possess." For
this reason, and because he had grown old and was in a "delicate
state of health," the assembly granted his petition for an absolute
dissolution of the first marriage.[366] From this time onward many
divorce decrees may be found in the session laws; and not until
the adoption of the constitution of 1874 was the practice entirely
abandoned.[367]
[364] But in _Laws_ (1848), 94, 95, the following case of
legislative interference may be found: "The right is hereby
given to Ludwig Brunileu to apply to the supreme court of this
state, in equity, for a divorce from his wife Bertha, ... with
the same effect and on the same footing in every respect, as if
they had been married in this state, and the offence or offences
complained of had been committed in this state, and within five
years prior to the time of such application."
[365] THOMPSON, _Laws of the Commonwealth of Pa._ (1804-6), VII,
73-75.
[366] THOMPSON, _op. cit._, 326-28.
[367] See, for example, _Acts_ (1808), 138, 140, 146 (for
cruelty, force at marriage, etc.); _ibid._ (1810), 82, 89, 194
(insanity before and after marriage, imprisonment for crime,
abuse, and abandonment); _ibid._ (1811-12), 28, 34, 143, 195,
198, 228, 231, 237; _ibid._ (1820-21), 3, 29, 35, 48, 139.
It was in Delaware, however, that legislative divorce died the
hardest death. By the act of 1832 the superior court was given
"sole cognizance of granting divorces" for cruelty, abandonment,
and some other causes; and in 1852 it was enacted that no "petition
for a divorce shall be received or acted on by the general assembly
for any cause cognizable" by that court, "nor without proof of one
month's public notice of the intention to prefer such petition, by
advertisements in a newspaper published within the county of the
petitioner's residence, if there be one," or, if not, then in some
other newspaper in the state.[368] Although this declaration of the
assembly restricting its jurisdiction to cases not provided for by
law was subsequently more than once repeated,[369] there was still
a wide range for interference, even if the will of one legislature
could bind that of another. The number of petitions granted waxed
apace. In 1887 it was forty-two; in 1889, sixty-three; and two
years later, forty-eight.[370] In the meantime a remedy was sought
through appeal to constitutional interdict. Once the effort was
almost successful. By an act of April 20, 1893, the assembly
proposed an amendment to the constitution giving the supreme court
exclusive jurisdiction in divorce suits, but only "for the causes
and upon the conditions prescribed by the legislature.[371] This
amendment failed of adoption; but its purpose was soon secured in
the new constitution of 1897, which declares that "no divorce shall
be granted, nor alimony allowed, except by the judgment of a court,
as shall be prescribed by general and uniform law."[372]
[368] _Rev. Stat. of Del._ (1852), 78.
[369] _Ibid._ (1874), 150; _ibid._ (1893), 242.
[370] _Laws_ (1887), 528-40; _ibid._ (1889), 1046-64; _ibid._
(1895), 300-308.
[371] _Laws_ (1893), 617.
[372] _Const. of the State of Del._ (1897), Art. II, sec. 18, p.
141.
_b_) _Judicial divorce: jurisdiction, kinds, and causes._--Regarding
the causes of divorce the history of the middle and western states
reveals little that is peculiar as compared with that of the
southern or eastern group. On the whole, a medial course has been
pursued. There is nothing very radical or very conservative. The
statutes of these commonwealths are entitled to be looked upon as
constituting the average American type.
The policy of New York has, indeed, seemed to be exceptional.
Throughout the century absolute divorce has been allowed only on the
scriptural ground. In 1787--for the first time since New Netherland
came under English rule--a general divorce law was enacted. The
preamble hints at the recent practice of special legislation.
"Whereas," we are told, "the Laws at present in being within this
state, respecting Adultery, are very defective, and Applications
have, in Consequence, been made to the Legislature, praying their
Interposition;" and since "it is thought more advisable ... to make
some general Provision in such Cases, than to afford relief to
Individuals, upon their partial representations, without a just
and Constitutional Trial of the Facts;" therefore for the offense
named, when the persons are inhabitants of the state, a "Petition or
Bill" may be presented to the chancellor. The latter is empowered to
direct the trial of the case by a "special or common jury" before
either the supreme or any circuit court; and in case of conviction
may "pronounce the marriage between the said parties to be
dissolved, and both of them freed" from its obligations. The guilty
defendant is forbidden to "remarry any person whatsoever;" while the
innocent plaintiff is fully authorized to "make and complete another
marriage, in like manner as if the party convicted was actually
dead." The divorce is not to affect the legitimacy of the children,
and the chancellor is required to make proper orders for their care
and maintenance and for the wife's alimony.[373]
[373] Act of March 30, 1787: _Laws of the State of N. Y._ (1789),
II, 133, 134; and _ibid._ (1792), I, 428, 429.
No further legislation on the subject appears until 1813, when
some important changes in the law were made. Now a petition for
divorce, on the same grounds, may be brought only when the persons
concerned were inhabitants of the state at the time the offense was
committed; or when the marriage was solemnized or took place in the
state, and the person injured was an actual resident of the state
at the time of the offense and at the time of exhibiting the bill.
The facts are to be tried by a "special or foreign" jury at some
circuit court or sittings, to be held by a justice of the supreme
court; and the person convicted is prohibited from further marriage
only during the lifetime of the other spouse. But the most important
innovation made by this act is the provision for partial divorce in
favor of the wife. Under the same conditions as to residence, the
court of chancery is empowered to grant a _feme covert_ a decree of
"separation from bed and board forever thereafter, or for a limited
time, as shall seem just and reasonable," when the husband has been
guilty (1) of cruel and inhuman treatment; or (2) of such conduct
"as may render it unsafe and improper for her to cohabit with him,
and be under his dominion and control;" or (3) when he has abandoned
her and neglected or refused to provide for her support. In all such
cases, if the defendant prove the ill conduct of the complainant as
a justification, he may be "dismissed with or without costs in the
discretion of the court." On the other hand, whether a separation
be decreed or not, the court is authorized "to make such orders and
decree for the suitable support and maintenance" of the wife and
children by the husband or out of his property, as the chancellor
shall deem just.[374]
[374] Act of April 13, 1813: VAN NESS AND WOODWORTH, _Laws of N.
Y._ (1813), II, 197-201.
The _Revised Statutes_ of 1827-28 make careful provision for the
annulment of voidable marriages; and by the same enactment the
divorce law is recast. Through sentence of nullity the chancellor
may declare void a marriage for the following causes existing at
the time of the contract: when (1) either husband or wife was below
the age of consent; or (2) had a spouse living under a marriage
still in force; or (3) was an idiot or lunatic; or (4) when consent
of either was obtained by force or fraud; or (5) when either was
physically incompetent to enter the matrimonial state. All these
grounds of nullity, with one slight change and some modification
of the conditions on which suit may be brought, are sanctioned by
the present code.[375] Divorce from the bond of wedlock according
to the revision of 1827-28 may be granted on the same conditions
regarding residence as those prescribed in 1813, except that it
allows the injured person, if an actual inhabitant at the time of
exhibiting the bill, to bring suit whenever the offense complained
of has been committed in the state. As in 1803, the guilty defendant
is forbidden to remarry until after the death of the complainant.
The three grounds of separation from bed and board in favor of the
wife allowed in that year remain unaltered, save that under the
second head the phrase referring to her being under the husband's
"dominion and control" is omitted; and now, when the marriage takes
place out of the state, the parties must have "become and remained
inhabitants" of it for at least one year, and in order to warrant a
decree the woman must be an actual resident thereof at the time of
bringing complaint.[376]
[375] _Rev. Stat. of 1827-28_ (Albany, 1829), II, 141-44. This
law provides that no bill for annulment may be brought by the
party who was of lawful age of consent, nor by the other if
there is voluntary cohabitation after age of consent. Suit
on the ground of force or fraud is likewise barred, if there
has at any time been voluntary cohabitation; and in case of
physical disability, it must be brought within two years after
solemnization of the marriage: _ibid._, II, 142, 143. _Cf._
STOVER, _Code of Civil Procedure_ (1902), II, 1832-33, where the
last-named provision is retained. By this _Code_, II, 1626, 1627,
the fourth ground of annulment is broadened by adding the word
"duress;" and a woman is authorized to bring action (1) when she
had not reached the age of sixteen at the time of the marriage;
(2) when the marriage took place without the consent of parent
or guardian; or (3) "when it was not followed by consummation or
cohabitation, and was not ratified by any mutual assent of the
parties after the plaintiff attained the age of sixteen years."
_Cf._ _Laws_ (1887), chap. 22, p. 25, for the origin of these
clauses.
[376] _Rev. Stat. of 1827-28_, II, 144-47.
Under the existing law of New York, for adultery, absolute divorce
may be granted to either the husband or wife (1) when both were
residents of the state at the time of the offense; (2) when the
marriage took place within the state; (3) when the plaintiff was
a resident of the state when the offense was committed, and so
remains at the commencement of the suit; (4) where the offense was
committed in the state and the person injured is a resident thereof
when the action is brought. In the first instance the judgment is
"interlocutory;" and three months must elapse before it can be made
final.[377] Remarriage is allowed only under the same conditions
as in 1813 and 1827, except that now the law does not "prevent the
remarriage of the parties to the action." At present suit for
partial divorce may be brought by either spouse, and not by the wife
only, as under the earlier laws. The grounds allowed are (1) cruel
and inhuman treatment; (2) conduct rendering it unsafe and improper
for the plaintiff to cohabit with the defendant; (3) abandonment;
(4) where the wife is plaintiff, the neglect or refusal of the
husband to provide for her.[378] When the marriage takes place out
of the state the provision of 1827-28 requiring one year's previous
residence of the parties and actual residence of the plaintiff at
the commencement of the action is still maintained.[379]
[377] So required by _Laws_ (1902), II, chap. 364; STOVER, _Code
of Civil Proced._ (1902), II, sec. 1774, p. 1863.
[378] It has been decided in Kennedy _v._ Kennedy, 73 _N. Y._,
363, affirming 47 _N. Y. Supr._, 56, that "threats of violence
of such a character as to induce a reasonable apprehension of
bodily injury, and charges of infidelity, made in bad faith, as
auxiliary to and in aggravation of the threatened violence, are
sufficient to constitute 'cruel and inhuman treatment.'" _Cf._
STOVER, _Code of Civil Proced._ (1892), II, 1639, 1640, note.
A "groundless and malicious charge against a wife's chastity,
and spitting upon her are gross acts of cruelty, and words of
menace accompanied by the probability of bodily violence, if
they inflict indignity and threaten pain, are sufficient." See
Whispell _v._ Whispell, 4 BARB., 217; and _cf._ Lutz _v._ Lutz,
31 _N. Y. St. Rep._, 718; Waltermire _v._ Waltermire, 110 _N.
Y._, 183; Uhlmann _v._ Uhlmann, 17 _Abb. N. C._, 236; Mason _v._
Mason, 1 EDW., _Ch._, 278; Perry _v._ Perry, 2 BARB., _Ch._, 311.
[379] STOVER, _Code of Civil Proced._ (1902), II, 1846.
New Jersey, whose early history ran so closely parallel to that of
New York, has during the century pursued a policy regarding divorce
more liberal than that of the neighboring commonwealth. As so often
happens, the act of 1794 confuses the grounds of annulment with
those of divorce proper. The court of chancery is authorized to
decree "divorces from the bond of matrimony" (1) when the husband
and wife are within the prohibited degrees of kinship; (2) for
adultery; (3) for "wilful, continued, and obstinate desertion for
the term of seven years;" or (4) when either person had a lawful
spouse living at the time of the later marriage, although the
statute inconsistently declares such unions "invalid from the
beginning" and "absolutely void." This last-named provision is still
in force.[380] By the law of 1794, moreover, separation from bed
and board is sanctioned for "extreme cruelty" in either spouse.[381]
[380] _Gen. Stat. of N. J._ (1896), II, 1267.
[381] Act of Dec. 2, 1794: PATERSON, _Laws of N. J._ (1800), 143,
144.
A new statute appears in 1820. The conditions as to residence are
now defined; the court of chancery may grant absolute dissolution
of wedlock for the same causes as in 1794; and separation from bed
and board is still permitted for extreme cruelty, but now it may be
decreed, "forever, or for a limited time."[382] In the revision of
the divorce laws approved April 15, 1846, the term of wilful and
continued desertion is reduced to five years;[383] in 1857 two years
more are lopped off;[384] and finally a statute of 1890 declares
a period of two years' such desertion sufficient to constitute a
ground of full divorce.[385]
[382] Act of Feb. 16, 1820: _Laws of N. J._ (1821), 667-69.
[383] _Stat. of N. J._ (1847), 923.
[384] Act of March 20: _Acts_ (1857), 399. The law of 1846 is
retained in ELMER, _Digest_ (2d ed. by NIXON, Philadelphia,
1855), 205-8.
[385] Act of March 5: _Pub. Laws_ (1890), 34; _Gen. Stat._
(1896), II, 1274.
Accordingly, by the present law of New Jersey dissolution of
wedlock may be decreed by the court of chancery (1) when the
marriage is bigamous; (2) when it is within the forbidden degrees
of kinship;[386] (3) for adultery; (4) for "wilful, continued, and
obstinate desertion during the term of two years;" and (5) when at
the time of the marriage either spouse was "physically and incurably
impotent," in which case the contract is declared "invalid from the
beginning and absolutely void."[387] But it is important to observe
that in certain cases the term of desertion is subject to a peculiar
statutory definition. It is declared that "wilful and obstinate
desertion shall be ... construed as 'continued' ... notwithstanding
that after such desertion has ... begun, the deserting party
has ... been imprisoned in this or any other state or country
upon conviction by due process of law for a crime, misdemeanor or
offence, not political," anywhere committed; provided, however,
that such desertion has continued without interruption a sufficient
length of time after discharge from prison to make up when added
to the term of desertion prior to the confinement the full term of
three [two] years.[388] Since 1891 three causes of separation from
bed and board have been allowed. For desertion, adultery, or extreme
cruelty, in either spouse, the court of chancery may now decree
such partial divorce "forever thereafter, or in the case of extreme
cruelty, for a limited time, as shall seem just and reasonable;" but
in every case except for extreme cruelty the petitioner "shall prove
that he or she has conscientious scruples against applying for a
divorce from the bond of matrimony."[389]
[386] A marriage within the forbidden degrees is not void but
voidable, and until so pronounced must be treated as valid:
Boylan _v._ Deinzer, 18 STEWART, _N. J. Equity Reports_, 485.
[387] Impotence as a ground of divorce appears in _Rev. Stat._
(1874), 255. _Cf._ also _Gen. Stat._ (1896), II, 1267. Before
this enactment a marriage could not be annulled for impotence:
Anonymous, 9 C. E. GREEN, _N. J. Equity Reports_, 19.
[388] Act of Apr. 1: _Pub. Laws_ (1887), 132; also in _Gen.
Stat._ (1896), II, 1273. This provision thus seems to be in
force; if so, since the act of 1890 already cited, the term must
be two years.
[389] Act of March 4: _Pub. Laws_ (1891), 76. In general, for the
present law regulating both kinds of divorce in New Jersey, see
_Gen. Stat._ (1896), II, 1267-75.
The framers of the Pennsylvania statute of 1785 saw fit to indulge
in an apologetic preamble. "Whereas," we are assured, "it is the
design of marriage, and the wish of the parties entering into
that state, that it should continue during their joint lives, yet
where the one party is under natural or legal incapacities of
faithfully discharging the matrimonial vow, or is guilty of acts
and deeds inconsistent with the nature thereof, the laws of every
well-regulated society ought to give relief to the innocent and
injured person;" therefore it is enacted that the justices of the
supreme court may grant divorce, "not only from bed and board, but
also from matrimony,"(1) when either person at the time of the
contract was and still is physically incompetent; (2) has knowingly
entered into a bigamous marriage; (3) has committed adultery; or
(4) has been guilty of "wilful and malicious desertion, without
a reasonable cause," for the space of four years. The court is
empowered to grant a divorce from bed and board, but not from the
bond of wedlock, "if any husband shall, maliciously, either (1)
abandon his family, or (2) turn his wife out of doors, or (3) by
cruel and barbarous treatment endanger her life, or (4) offer such
indignities to her person, as to render her condition intolerable,
or life burdensome, and thereby force her to withdraw from his house
and family." In these cases the wife is allowed "such alimony as her
husband's circumstances will admit of so as the same do not exceed
the third part of the annual profits or income of his estate, or of
his occupation or labour," or the court may decree "but one of them"
as justice may require. She shall continue to enjoy this alimony
"until a reconciliation shall take place, or until the husband shall
by his petition or libel, offer to receive or cohabit with her
again, and to use her as a good husband ought to do." Then the court
is authorized either to suspend the decree; or, if the wife refuse
"to return and cohabit under the protection of the court," it may
discharge and annul the same. But if he fail to make good his offers
and engagement, the "former sentence and decree may be revived and
enforced;" and the arrears of alimony may be ordered paid.[390]
[390] Act of Sept. 19, 1785: _Laws of the Com. of Pa._ (1803),
III, 102-6. Repealed March 13, 1815: _Laws of Gen. Assem._
(1822), VI, 286; PURDON, _Digest_ (1818), 130.
By the first statute of the period, it thus appears, a liberal
divorce policy was adopted by Pennsylvania, and besides, it should
be remembered, the courts were not the only source of relief. For
many years, as already seen, the assembly exercised jurisdiction
in divorce matters. After 1785 the first step in the practical
relaxation of the law was taken in 1804, when jurisdiction, hitherto
vested exclusively in the supreme court, was extended to the county
courts of common pleas, where it still remains.[391] Since that
date the progress of legislation has been rapid enough. Under the
existing law, as the result of a century's growth, not less than
eleven grounds of complete divorce are recognized. By the statute
of 1815, repealing the law of 1785, the four causes sanctioned by
the latter are re-enacted, the term of "malicious desertion and
absence from the habitation of the other"--as the clause is now
phrased--being reduced to two years; and it is further provided that
full dissolution of marriage may be decreed (5) when any husband,
by cruel and barbarous treatment, shall have endangered the life of
his wife; or (6) offered such indignities to her person as to render
her condition intolerable and life burdensome, thereby forcing
her to withdraw from his house and family.[392] Marriage within
the forbidden degrees of affinity or consanguinity (7) was made a
ground in the same year;[393] lunacy of the wife (8) came next in
1843;[394] and in 1854 divorce was sanctioned (9) when the alleged
marriage was procured by fraud, force, or coercion, and has not been
later confirmed by the acts of the person injured; (10) when the
wife, by cruel and barbarous treatment, has rendered the condition
of her husband intolerable or life burdensome; or (11) when either
spouse has been convicted for felony with imprisonment for more than
two years.[395] These eleven causes are still in force, although in
1903 a new law regarding the crimes of either spouse to constitute a
cause was adopted.[396]
[391] _Laws of the Com._, VII, 375.
[392] Act of March 13, 1815: in _Laws of Com._ (1822), VI, 286;
and PEPPER AND LEWIS, _Digest_ (1896), I, 1633.
[393] _Laws of the Com._ (1822), VI, 288; PEPPER AND LEWIS,
_Digest_, I, 1634. But when marriages within such degrees "shall
not have been dissolved during the lifetime of the parties, the
unlawfulness of the same shall not be enquired into after the
death of either husband or wife."
[394] By the act of April 13, 1843: _Laws_ (1843), 233; PEPPER
AND LEWIS, _Digest_, I, 1636, "where the wife is lunatic or _non
compos mentis_" a petition for divorce may be "exhibited by any
relative or next friend" who shall make the affidavit provided
for in other cases of divorce.
[395] Act of May 8: _Laws_ (1854), 644; PEPPER AND LEWIS,
_Digest_ (1896), I, 1635. When divorce is granted the husband for
the tenth cause, the wife may be allowed alimony according to his
circumstances.
By an act of March 9, 1855 (_Pub. Laws_, 68; PEPPER AND LEWIS,
_Digest_, I, 1636), the courts of common pleas are given
jurisdiction in all cases of divorce "from the bonds of matrimony
for the cause of personal abuse, or for such conduct on the part
of either the husband or the wife as to render the condition of
the other party intolerable and life burdensome, notwithstanding
the parties were at the time of the occurring of said causes
domiciled in another state;" but the applicant must be a citizen
and have been a resident of the state for one year. This act,
according to judicial interpretation, does not establish new
causes for divorce, but only enlarges the jurisdiction of
the court in reference to the parties under causes already
recognized: Schlichter _v._ Schlichter, 10 _Phila. Reports_, 11
(1873). Cruel and barbarous treatment must be alleged in the
libel: Pennington _v._ Pennington, _ibid._, 22.
[396] _Laws of Pa._ (1903), 19; repealing the act of June 1,
1891: _ibid._ (1891), 142.
On the other hand, the century has produced but one change in the
special grounds of partial divorce. Petitions for separation from
bed and board are still allowed only in favor of the wife. The four
causes sanctioned in 1785, re-enacted in 1815 and 1817, are yet in
force;[397] while, since 1862, adultery on the part of the husband
is admitted as a fifth ground of complaint.[398]
[397] PEPPER AND LEWIS, _Digest_ (1896), I, 1687. _Cf._ the act
of March 13, 1815: _Laws of the Com._ (1822), VI, 286; and _Laws_
(1817), 405.
[398] _Laws_ (1862), 430; PEPPER AND LEWIS, _Digest_, I, 1637,
1638.
An important innovation appears in 1893. A new group of
discretionary causes is then created. The courts are empowered
to grant the wife a divorce, either from bed and board or from
the bond of wedlock, on four several grounds. Three of these are
identical with the third, fourth, and fifth causes of partial
divorce just enumerated. In addition, two years' "wilful and
malicious desertion" by the husband is admitted. These same four
causes are declared valid "where it shall be shown to the court by
any wife that she was formerly a citizen of this commonwealth, and
that having intermarried with a citizen of any other state or any
foreign country, she has been compelled to abandon the habitation
and domicile of her husband" in such place, thereby being "forced to
return to this commonwealth in which she had her former domicile."
In any such case, if personal service by subpœna cannot be made
upon the husband by reason of his non-residence, the court before
entering a decree shall require proof that, in addition to the
publication required by law, actual or constructive notice of the
proceedings has been given him, either "by personal service or by
registered letter to his last known place of residence, and that a
reasonable time has thereby been afforded to him to appear" and make
defense. The wife, however, is only entitled to the benefits of this
act when she has been a citizen and resident of the state for one
year previous to bringing suit.[399]
[399] Act of June 20: _Laws_ (1893), 471; PEPPER AND LEWIS,
_Digest_, I, 1638, 1639.
It must further be observed, in connection with the present laws of
Pennsylvania regarding absolute divorce, that the principle of the
colonial statute touching cases of long absence has unfortunately
been perpetuated. The snare is still set for the feet of the unwary.
"If any husband or wife, upon false rumor, in appearance well
founded, of the death of the other (when such other has been absent
for the space of two whole years), hath married ... again, he or
she shall not be liable to the pains of adultery;" but on return
the person remaining unmarried may elect either to have the former
spouse restored or to have the former contract dissolved, leaving
the second marriage undisturbed.[400]
[400] Act of 1815: _Laws of the Commonwealth_ (1822), VI, 288;
PEPPER AND LEWIS, _Digest_ (1896), I, 1634.
"While a well-founded belief in the death of her first husband
will relieve a woman marrying a second time from the pains of
adultery, it cannot validate her second marriage, if, in fact,
her first husband was living when it was solemnized."--Thomas
_v._ Thomas, 124 _Pa._, 646; s. c., 23 _W. N. C._, 410 (1889).
_Cf._ PEPPER AND LEWIS, _Digest_, I, 1634, ed. note.
By the Delaware statute of February 3, 1832, the superior court is
authorized to grant absolute divorce, or, in its discretion, partial
divorce or merely alimony, where either spouse (1) had a lawful
husband or wife living at the time of the marriage; (2) has been
wilfully absent from the other for three years with the intention
of abandonment; (3) has committed adultery; or (4) extreme cruelty;
or (5) where the male was actually impotent when the marriage took
place.[401] Just twenty years later an entirely new grouping of
causes and kinds of separation was introduced. The superior court
is empowered to grant a full divorce (1) for adultery of the wife;
and (2) for impotency of either person at the time of marriage;
while separation from bed and board is allowed (1) for adultery of
the husband; (2) for extreme cruelty; or (3) for wilful absence of
either for three years with intent to abandon. At the same time
a distinction was made between divorce and annulment. The court
is authorized to declare null and void a marriage (1) within the
prohibited degrees of affinity or consanguinity; (2) between a white
person and a negro or mulatto; (3) where either person was insane;
or (4) had a spouse living at the time of the contract.[402] At
present the annulment of voidable contracts is still governed by the
enactment of 1852.[403]
[401] _Laws of Del._ (1832), 148-50.
[402] _Rev. Stat. of Del._ (1852), 238.
[403] _Rev. Stat._ (1893), 596.
In 1859 a revised scheme was substituted. Absolute divorce
is authorized on the same two grounds as in 1852, the unjust
discrimination regarding the husband's infidelity being still
maintained. On the other hand, "a divorce from the bond of
matrimony, or from bed and board, at the discretion of the court,"
may now be decreed for (1) adultery of the husband; (2) extreme
cruelty; (3) procurement of the marriage by force or fraud; (4) want
of legal age--sixteen for males and fourteen for females--if after
that age the marriage has not been voluntarily ratified; (5) wilful
abandonment for three years; (6) conviction in any place, before or
after marriage, of a crime deemed felony by the laws of the state;
(7) habitual gross drunkenness for three years, contracted after
marriage; or (8) three years' wilful neglect by the husband to
provide his wife with the common necessaries of life.[404]
[404] Act of Feb. 24, 1859, amending the act of 1852: _Laws_
(1859), 730, 731.
By the present law of Delaware, which has existed since 1873,
the superior court may decree absolute divorce for (1) adultery
in either spouse; (2) desertion for three years; (3) habitual
drunkenness; (4) impotency at the time of marriage; (5) extreme
cruelty; or (6) conviction of felony, as in 1859. The discretionary
grounds on which the court may grant either full or limited divorce
are now reduced to two, these in substance being nearly identical
with the fourth and eighth causes sanctioned by the statute of
1859.[405]
[405] _Cf._ Act of March 12: _Laws of Del._ (1873), 633-35; or
the same in _Rev. Stat._ (1874), 475; with _Rev. Stat._ (1893),
595.
The discretionary grounds are now (1) "procurement of the
marriage by fraud for want of age, the husband being under the
age of eighteen years or the wife being under the age of sixteen
years at the time of the marriage, and such marriage not being
after those ages voluntarily ratified;" (2) "wilful neglect on
the part of the husband for three years to provide for his wife
the necessaries of life suitable to her condition."
The history of judicial divorce in the West begins with the statute
adopted for the Northwest Territory in 1795. Jurisdiction is vested
in the general court and the circuit courts, which are empowered
to grant absolute divorce (1) for adultery; (2) impotency; (3)
where either person had a husband or wife alive at the time of the
second marriage; or to grant partial divorce for extreme cruelty in
either spouse.[406] This law was repealed in 1804 by an act of the
legislature of Ohio--that portion of the Northwest Territory having
been made a state in 1802--giving the supreme court sole cognizance
of divorce suits. By it no provision for partial divorce is made;
but full dissolution of marriage is sanctioned (1) for bigamy, as
in 1795; (2) for wilful absence for five years; (3) for adultery;
and (4) for extreme cruelty.[407] After eighteen years' trial, the
plan of 1804 was in its turn superseded. Six grounds of absolute
divorce were then provided. Of these four are identical with those
just mentioned, except that the term of wilful absence is reduced
to three years. In addition there are recognized (5) physical
incompetence at the time of the marriage; and (6) sentence with
actual imprisonment for violation of the criminal laws of the state,
provided application be made during the term of confinement.[408]
Two years later a new plan was adopted. Absolute divorce was
permitted for the six causes allowed in 1822; and partial divorce,
which had not existed by statute for twenty years, was revived; the
courts, on the same six grounds, being authorized, instead of full
dissolution of wedlock, to decree separation from bed and board, or
merely alimony, according to justice and the circumstances in each
case.[409] This provision, however, was short-lived; for in 1833
partial divorce was a second time abolished.[410]
[406] CHASE, _Stat._, I, 192, 193 (act of July 15, 1795).
[407] _Ibid._, 493, 494.
[408] Act of Jan. 11, 1822: CHASE, _Stat._, II, 1210, 1211.
[409] Act of Jan. 7, 1824: CHASE, _Stat._, II, 1408, 1409.
[410] Act of Feb. 22, 1833: CHASE, _Stat._, III, 1934.
Thus matters stood until 1853, when a measure appeared by which the
law was much relaxed in several important respects. Jurisdiction,
which since 1804 had remained solely in the supreme tribunal of the
state, was now vested in the several courts of common pleas. In
addition to the six grounds for full divorce already created, four
new causes were recognized. These were (7) fraudulent contract; (8)
gross neglect of duty; (9) habitual drunkenness for three years; and
(10) a decree of divorce in another state "by virtue of which the
party who shall have obtained such decree shall have been released
from the obligations of the marriage contract, while the same
remains binding upon the other."[411]
[411] Act of March 11, 1853: SWAN, _Stat. of Ohio_ (1854),
324-28. But the provision regarding sentence and imprisonment is
differently worded. At present (BATES, _Ann. Rev. Stat._ (1900),
II, 2948) the paragraph reads: "The imprisonment of either party
in a penitentiary under sentence thereto; but the petition for
divorce under this clause shall be filed during the imprisonment
of the adverse party."
These ten causes of absolute divorce are still sanctioned by Ohio
law. No provision is made for limited divorce; but there is an
"action for alimony, which is in effect a limited divorce, and
which may be brought by the wife for any of the following causes,"
also sanctioned by the act of 1853: (1) adultery; (2) any gross
neglect of duty; (3) abandonment without good cause; (4) separation
in consequence of the husband's ill-treatment, whether the wife is
maintained by him or not; (5) habitual drunkenness; and (6) sentence
to imprisonment in a penitentiary, if application be made while the
husband is so confined.[412]
[412] For the present law of Ohio see BATES, _Ann. Rev. Stat._
(1897), II, 2804-10. _Cf._ WRIGHT, _Report_, 106. Jurisdiction is
still vested in the courts of common pleas, although in certain
counties the probate courts have cognizance: BATES, _op. cit._,
II, 2804.
Indiana, in 1816, is the next portion of the Northwest Territory
to be admitted to the Union. Two years after the attainment of
statehood her legislature passed the first divorce statute,
granting jurisdiction to the circuit courts. By the enactment full
divorce in favor of either spouse when aggrieved is allowed for
(1) adultery; (2) matrimonial incapacity; (3) bigamous contract;
(4) two years' absence with intent to abandon; (5) desertion and
living in adultery; (6) conviction for felony; and (7) in favor of
the wife when the husband's treatment of her is extremely barbarous
and inhuman.[413] In 1824 an "omnibus" clause was introduced, a
full divorce being then allowed on petition of the injured person
(8) "in all cases where the court in its discretion" shall deem the
same "just and reasonable."[414] These grounds are all sanctioned by
the act of 1831.[415] Still another cause was admitted in 1836. The
circuit courts are empowered to grant the wife absolute divorce (9)
when the husband for two years has been a habitual drunkard, and has
failed for "any unreasonable length of time to make provision for
his family." By the same act, moreover, a marriage may be dissolved
"in all cases where the parties have been guilty of murder,
manslaughter, burglary, robbery, grand or petty larceny, forgery,
counterfeiting, arson, bribery, perjury, or any other crime" the
penalty for which on conviction is "imprisonment at hard labor
in the penitentiary."[416] But, apparently, this is meant to be a
restatement of the sixth cause above given.[417]
[413] Act of Jan. 26, 1818: _Laws of the State of Ind._ (1818),
226-29.
[414] _Rev. Laws_ (1824), 156, 157; same in _ibid._ (1831),
213-15.
[415] Act of Jan. 17, 1831: _Rev. Laws_ (1831), 213.
[416] _Laws of a Gen. Nature_ (1836), 69.
[417] Nevertheless, the act of 1836 provides for causes in
addition to those sanctioned by the act of 1831, which includes
conviction for felony as in 1818.
Only two years elapsed before a new general statute was adopted,
authorizing full divorce on eight grounds. Six of these correspond
to the first, second, sixth, seventh, eighth, and ninth causes
already sanctioned. Bigamous marriage and desertion with adultery
no longer appear as causes; while the fourth ground, as above
enumerated, is so modified as to require a separate statement for
the husband and wife respectively. The husband (7) is allowed a full
divorce for two years' absence of the wife with intent to abandon;
and the wife is granted the same relief (8) for like absence of the
husband, "and also for any other cause or causes"--a most singular
legislative freak.[418] In 1843 this vicious clause was dropped.
Abandonment for two years is now made a cause of divorce in favor of
either person, thus reducing the number of legal grounds to seven.
At the same time, in modification of a cause already existing,
the wife is allowed a petition on account of "cruel and inhuman
treatment" by the husband, "or when his conduct towards her has
been such as may render it unsafe and improper for her to live with
him." The other five causes sanctioned by the statute of 1838 are
re-enacted without change.[419] A relaxation of the law takes place
in 1849. One year's abandonment is declared sufficient to constitute
a cause; but in such case the court is especially empowered, in its
discretion, to grant a divorce, waiving all objections in regard to
time of separation, if it deems a reconciliation "hopeless."[420]
[418] _Rev. Stat._ (1838), 242-44. The sixth ground, as
enumerated in the text, the first of this act, is "any crime"
committed in the United States or the territories, the punishment
for which is deemed "infamous."
[419] _Rev. Stat._ (1843), 598 ff.
[420] Act of June 1: _Gen. Laws_ (1849), 62, 63.
A pause of three years next ensues before the lawmaker resumes
his tinkering with the causes of divorce. The act of 1852 admits
the seven general grounds, as these had existed since the change
in 1849; but with two important modifications. For now "habitual
drunkenness," without reference to the term during which it has
existed, and cruel treatment, each on the part of either husband or
wife, are constituted reasons for dissolving the marriage bond. By
the same law a divorce for adultery is denied when there has been
(1) connivance; (2) voluntary cohabitation after knowledge of the
offense; (3) neglect to petition within two years; or (4) when the
petitioner is guilty of the same crime.[421] Seven years later the
time of abandonment, to constitute a cause, was reduced to one year,
the court being thus deprived of its discretionary power to grant a
divorce for desertion during a shorter period.[422]
[421] _Rev. Stat._ (1852), II, 233-38.
[422] _Laws of Ind._ (1859), 108.
Finally the long series of enactments defining the grounds of
absolute divorces came to a halt in 1873, when the law of Indiana in
this regard took its present form. The superior and circuit courts,
on petition of either spouse, are granted jurisdiction. Three very
important and beneficial amendments, producing a marked decrease in
the number of divorces annually granted, are now made. The term of
abandonment is increased from one year to two years; "failure of
the husband to make reasonable provision for his family" is changed
to such failure for a "period of two years;" and, most significant
of all, the omnibus clause, existing since 1824 and rephrased in
1838, providing that divorces may be granted "for any other cause"
which the court shall deem "reasonable and proper," is stricken
out.[423] As a result, the marriage tie may now be dissolved for
(1) adultery; (2) impotence existing at the time of the marriage;
(3) abandonment for two years; (4) cruel and inhuman treatment; (5)
habitual drunkenness; (6) failure of the husband to make reasonable
provision for his family for two years; (7) the conviction of either
person, in any country, subsequent to the marriage, of an infamous
crime. Until very recently limited divorce was not recognized in
Indiana; but a married woman might bring action for the support of
herself and infant children in the following cases, being analogous
to those sanctioned by the Ohio law: (1) when the husband shall have
deserted his wife, or wife and children, without leaving sufficient
provision for support; (2) when he shall have been convicted of
felony and imprisoned in the state prison, not leaving his wife, or
wife and children, the same provision; (3) when he is a habitual
drunkard and by reason thereof becomes incapacitated or neglects
to provide for his family; or (4) when he renounces the marriage
covenant, or refuses to live with his wife in the conjugal relation,
by joining himself to a sect or denomination the rules and doctrines
of which require such renunciation or forbid a man and woman to
dwell and cohabit together in the conjugal relation according to
the true intent and meaning of the institution of marriage.[424]
A statute of 1903 authorizes separation from bed and board "for a
limited time" in case of (1) adultery; (2) "desertion, or where the
wife is plaintiff, neglect or refusal to suitably provide for her,
covering a period of six months;" (3) habitual cruelty of one party,
"or such constant strifes of both parties as render their living
together intolerable;" (4) habitual drunkenness, "or the confirmed
and excessive use of morphine, cocaine, or any other drug;" (5)
gross and wanton neglect of conjugal duty for six months.[425]
[423] For construction of the omnibus clause, see Ritter _v._
Ritter, 5 BLACKF., 81.
[424] Act of March 10: _Laws of Ind._ (1873), 107-12; also
HORNER, _Rev. Stat._ (1896), I, secs. 1024-49; II, sec. 5132;
BURNS, _Ann. Stat._ (1901), I, 443, 444; III, 559.
[425] _Laws of Ind._ (1903), 114, 115.
In 1818, closely following Indiana, Illinois was carved from the
bountiful region northwest of the Ohio River. After a year's
delay, a divorce law was enacted in 1819; and this, as amended in
1825, authorizes both kinds of separation. Full dissolution of
wedlock may be granted for (1) physical incapacity at the time of
solemnization; (2) adultery; (3) two years' voluntary and continued
absence. Partial divorce is likewise sanctioned for (1) extreme and
repeated cruelty in either spouse: or (2) constant and habitual
intemperance in either for two years. "But in the latter case it
shall be incumbent on the complaining party to show that he or she
had performed all the duties of a faithful and affectionate husband
or wife."[426]
[426] Act of Jan. 17, 1825, to amend an act of Feb. 22, 1819:
_Laws of Ill._ (1825), 169.
The act of 1827 is silent as to limited divorce, which has not since
been recognized in Illinois. Full divorce may now be granted by the
circuit courts, sitting as courts of equity, when either person (1)
was at the time of the marriage and still is naturally impotent;
(2) had a husband or wife living at the time of the marriage; (3)
has since been guilty of adultery; or (4) wilful desertion for
two years; or (5) extreme and repeated cruelty; or (6) habitual
drunkenness for two years.[427] A step backward was taken in 1832
through the adoption of a kind of omnibus clause. By proceedings
in chancery full dissolution of marriage is authorized (7) for all
causes of divorce not provided for by any law of the state.[428]
Next, after an interval of thirteen years, on the petition of
the aggrieved, comes (8) conviction for felony or other infamous
crime.[429] This is followed after the lapse of thirty years more
by the sanction (9) of absolute divorce when either person "has
attempted the life of the other by poison or other means showing
malice."[430]
[427] _Rev. Code_ (1827), 180, 181.
[428] Act of Dec. 4, 1832: _Rev. Laws_ (1833), 234, 235. In the
statutes this is not enumerated as a cause; but it surely is one
in effect.
[429] _Rev. Stat._ (1845), 196; also in PURPLE, _Comp._ (1856),
I, 493, 494; and in _Stat. of Ill._ (1864), 150, 152.
[430] Act of March 10, 1874: GROSS, _Stat. of Ill., 1818-74_ (3d
ed., 1872-74), III, 176.
The tale of causes allowed by the present law of Illinois is thus
complete. Separation from bed and board is not provided for by
statute. In general, chancery process is required. The circuit
courts of the respective counties and the superior court of
Cook county (Chicago) are clothed with jurisdiction in divorce
controversies.[431]
[431] HURD, _Rev. Stat._ (1898), 631-34. _Cf._ _Rev. Stat._
(1845), 196, 197; and STARR AND CURTIS, _Ann. Stat._ (1896), II,
1435-55.
Michigan became a separate territory in 1805, and seven years
thereafter the supreme court was granted jurisdiction in both kinds
of divorce.[432] By the act of 1819 marriage may be dissolved for
adultery in either spouse, when the husband and wife are inhabitants
of the territory, or when the marriage was solemnized therein; as
also when the injured person was an actual resident of the territory
at the time of the offense, and so remains when the bill is filed.
When guilty, the wife forfeits her right of dower. On the other
hand, the court may grant her a divorce _a mensa_, forever or for a
limited time, (1) for "cruel and inhuman treatment;" (2) for such
conduct on the part of the husband "as may render it unsafe and
improper for her to cohabit with him and be under his dominion and
control;" or (3) when "he has abandoned her and refuses or neglects
to provide" for her support.[433]
[432] Act of 1812: _Territorial Laws of Mich._, I, 183.
[433] Act of Nov. 13, 1819: _Territorial Laws of Mich._, I,
495-98; _cf._ the act of Apr. 12, 1827: _ibid._, II, 363-66,
repeating the provisions given in the text from the act of 1816.
A different plan appears in 1832. A divorce from the bond of
wedlock is now permitted (1) for impotency, and (2) for adultery.
Furthermore, the court, in its discretion, is empowered to grant
either person a full or a partial divorce (1) for extreme cruelty,
or (2) for five years' wilful desertion. By this act jurisdiction
is vested in the supreme court and either of the circuit courts of
the territory.[434] A statute of the next year retains all these
provisions of 1832, except that the term of wilful desertion, to
constitute a discretionary ground, is reduced to three years.[435]
Five years later, after Michigan became a state, a divorce is made
unnecessary when a marriage is void or when the persons contracting
it are below the age of consent. At the same time the grounds of
separation are reconsidered. Absolute divorce is now authorized (1)
for adultery; (2) for impotence; (3) for five years' desertion;
(4) for sentence to imprisonment at hard labor for three years or
more; and either a full or a partial divorce, on the petition of
either spouse, (1) for extreme cruelty; (2) for three years' "utter
desertion;" or (3) on application of the wife, when the husband,
being of sufficient ability to provide a suitable maintenance for
her, "shall grossly or wantonly and cruelly refuse or neglect to
do so."[436] In 1844 extreme cruelty, "whether practiced by using
personal violence, or by any other means," was substituted for the
corresponding clause in the act of 1838.[437] Next, in 1846 and 1847
came swift changes in the law of desertion, but only in their turn
to be swept away in 1848.[438] So in 1851 we reach an act by which
the grounds of divorce in Michigan have been determined for half a
century.
[434] Act of June 28, 1832: _Ter. Laws of Mich._, III, 931, 932.
[435] Act of Apr. 4, 1833: _Ter. Laws of Mich._, III, 1005-7.
[436] _Rev. Stat._ (1838), 336, 337.
[437] _Acts_ (1844), 74.
[438] The _Rev. Stat._ (1846), 333, make the term of desertion
two years for either absolute or limited divorce. The _Acts_
(1847), 168, 169, lengthen the period to five years for absolute
divorce and three years for partial divorce. But these changes
are repealed by _Acts_ (1848), 194.
By the existing law, as then enacted, on application of the
aggrieved, a full divorce may be decreed by the court of chancery,
or by the circuit court of the county where the parties or one
of them resides, for (1) adultery; (2) physical incompetency;
(3) sentence to imprisonment for three years or more, no pardon
to affect the status of the divorced persons; (4) two years'
desertion; (5) when the husband or wife shall have become a habitual
drunkard; "and (6) the circuit courts may, in their discretion, upon
application as in other cases, divorce from the bonds of matrimony
any party who is a resident of this state, and whose husband or
wife shall have obtained a divorce in any other state." The same
tribunals are authorized, in their discretion, to grant either a
limited or a full divorce in favor of the aggrieved for (1) extreme
cruelty, "whether practiced by using personal violence, or by any
other means;" (2) utter desertion for two years; or (3) on complaint
of the wife for the husband's neglect to provide, as by the law of
1838.[439]
[439] HOWELL, _Gen. Stat._ (1882-83), II, 1621-30; MILLER, _Comp.
Laws_ (1899), III, 2653-66; _cf._ _Acts_ (1851), 71, 72. The
partial divorce may, as originally, be "forever or for a limited
time."
Wisconsin, the remaining[440] portion of the region originally
governed by the ordinance of 1787, was erected into a separate
territory in 1836. Its divorce legislation, which in its general
outline is similar to that of Michigan, began in 1838-39, when the
district court of each county was given jurisdiction in both kinds
of separation. The causes of absolute divorce then recognized are
(1) impotence; (2) adultery. Those of partial divorces are (1)
extreme cruelty; (2) two years' wilful desertion; (3) habitual
drunkenness; (4) abandonment of the wife by the husband, or "his
refusal or neglect to provide for her."[441]
[440] Except a part of Minnesota.
[441] _Stat. of the Ter. of Wis._ (1838-39), 140, 141.
In 1849, the year following the attainment of statehood, was
adopted a new statute by which the foundation of the present
system was laid. By it, as under the present law, a marriage is
declared absolutely dissolved without any decree of divorce or
legal process whenever either spouse is sentenced to imprisonment
for life; and a pardon is not to effect a restoration of conjugal
rights. The circuit courts are granted jurisdiction. Both full
and partial divorce are provided for. Absolute divorce is allowed
for (1) adultery; (2) impotence; (3) sentence of either spouse to
imprisonment for a period of three years or more, no pardon working
a restoration of conjugal rights; (4) wilful desertion for one
year next preceding the commencement of the action; (5) when the
treatment of the wife by the husband has been "cruel and inhuman,
whether practiced by using personal violence, or by any other
means," or "when the wife shall be guilty of like cruelty to her
husband or shall be given to intoxication;" (6) when the husband
or wife shall have been a habitual drunkard for the space of one
year immediately preceding the filing of the bill. To these grounds
was added as a cause in 1866: (7) voluntarily living entirely
separate for the five years next preceding the commencement of the
action.[442] So the law of absolute divorce remains at the present
time, all attempts to make insanity a permanent ground having thus
far failed.[443]
[442] Act of March 31, _Gen. Laws_ (1866), 40.
[443] In 1856 the court in its discretion was authorized to
decree a divorce when either spouse shall become incurably
insane and "shall have so remained for the term of seven years
continuously," the husband being required to give bond with
security for the maintenance of the wife during her life: Act
of March 31, _Gen. Acts_ (1856), 96. After two years this act
was repealed: _Gen. Laws_ (1858), 82. A second attempt was made
in 1881. A full divorce was then authorized when either husband
or wife shall have been insane for the space of five years
immediately preceding the commencement of the action, and the
court shall be satisfied that the insanity is incurable: Act of
April 2, _Laws_ (1881), 376-78. This statute was repealed the
next year: _Laws_ (1882), 798.
The history of partial divorce in Wisconsin is soon told. The
provisions of the act of 1849 are still in force. The causes of
separation from bed and board, forever or for a limited time,
there recognized are (1) the fourth, fifth, and sixth grounds
of full divorce above specified; (2) extreme cruelty of either
spouse; (3) on complaint of the wife when the husband, being of
sufficient ability, shall refuse or neglect to provide for her; or
(4) when his conduct toward her is such as may render it unsafe
and improper for her to live with him. It is expressly declared
that a divorce from the bond of matrimony may be decreed for either
of the three causes last named, "whenever, in the opinion of the
court, the circumstances of the case are such that it will be
discreet and proper to do so." From the somewhat awkward arrangement
of its provisions, therefore, the general effect of this statute
appears to be that a full divorce _may_ be granted for any ground
recognized by it, provided the court deems it prudent to exercise
its discretionary authority. Furthermore, it must be noted that by
the existing law, just as in 1849, the circuit court is empowered to
allow separate maintenance when a partial divorce is denied.[444]
[444] _Cf._ _Rev. Stat._ (1849), 393-98; _ibid._ (1858), 623-28;
_ibid._ (1872), II, 1269-76; _Ann. Stat._ (1889), I, 1362-75; and
SANBORN AND BERRYMAN, _Wis. Stat._ (1899), I, 1702-20.
We may next pass to the long list of new states in the West and
Northwest whose generous boundaries spread over the Mississippi
valley, the vast regions of the Rocky Mountains, and the Pacific
slope. The course of legislation in Minnesota has run closely
parallel to that of Wisconsin, though it is divergent in some
important details. In 1851, seven years before the admission of
that state to the Union, a statute logically declared bigamous
marriages and those within the forbidden degrees, if solemnized in
the territory, void without a decree. At the same time, as causes
of absolute divorce in favor of the aggrieved were sanctioned
(1) adultery; (2) impotency; (3) sentence to imprisonment in the
penitentiary after the marriage, no subsequent pardon effecting a
restoration of conjugal rights; (4) wilful desertion for one year
next preceding the commencement of the suit; (5) cruel and inhuman
treatment, whether practiced by using personal violence or by any
other means; (6) habitual drunkenness for one year immediately
preceding the filing of the complaint. By this act no provision is
made for partial divorce.[445] The term of wilful desertion was
increased from one year to three years in 1866;[446] but in 1895 the
shorter period was restored, so that under the existing law the six
grounds of absolute divorce as sanctioned in 1851 are recognized,
except that "cruel and inhuman treatment" is constituted a cause,
the original explanatory clause being omitted.[447] On the other
hand, limited divorce is now provided for. Since 1876, on complaint
of a married woman, separation from bed and board is authorized
(1) for cruel and inhuman treatment by the husband; (2) for such
conduct on his part as may render it unsafe and improper for her to
cohabit with him; or (3) for abandonment and refusal or neglect by
him to provide for her. The district court of the county where the
persons or one of them resides is now vested with jurisdiction in
all actions for divorce or for the annulment of marriage.[448]
[445] _Rev. Stat. of Minn._ (1851), 272-76.
[446] _Gen. Stat. of Minn._ (1866), 408-12. "The revisers
repeated this chapter under two titles, the second being entitled
'Limited Divorces,' but the legislature rejected Title II and did
not change or amend Title I."--_Ibid._, 408, note.
[447] Act of April 22, _Session Laws_ (1895), 158. _Cf._ _Gen.
Stat._ (1894), I, 1267, for the law modified in 1866.
[448] _Cf._ _Laws_ (1876), chap. 118; _Gen. Stat. of Minn._
(1894), I, 1273, 1267; _Session Laws_ (1895), 158.
One of the worst and most characteristic features of American
state legislation is seen in the session laws of Iowa, where
the statute-maker is perennially engaged in adopting, changing,
abrogating, or re-enacting plans of divorce and alimony. The first
step was taken in 1838, when the district court of the county where
the persons or one of them resides was given jurisdiction on the
petition of the aggrieved. The grounds of absolute divorce then
allowed are (1) impotence; and (2) adultery. Those of divorce _a
mensa_ or of divorce from the bond of wedlock, in the discretion of
the court, are (1) extreme cruelty; or (2) wilful desertion for one
year.[449] This law was repealed and a new one adopted in the next
year. Nothing is now said of separation from bed and board; but a
full divorce may be had by the injured spouse for (1) impotency;
(2) bigamous marriage; (3) adultery; (4) one year's desertion;
(5) felony; (6) habitual drunkenness; (7) cruel treatment; (8)
indignities.[450] Three years later this statute in turn gave place
to another by which the same causes are sanctioned, except, under
the sixth head, it is provided that "said habitual drunkenness
shall be contracted after marriage."[451] In 1846, however, this
proviso was dropped; and at the same time an "omnibus" clause was
sanctioned. A full divorce may now be granted (9) "when it shall
be made fully apparent to the satisfaction of the court, that the
parties cannot live in peace and happiness together, and that their
welfare requires a separation."[452] The eighth ground was dropped
in 1851, and at the same time it was again specified under the sixth
head that drunkenness shall have become habitual after marriage.[453]
[449] Act of Dec. 29, 1838: _Laws of Ia._ (1838-39), 179, 180.
[450] Act of Jan. 17, 1840: _Laws of Ia._ (1839-40), 120-22.
[451] Act of Jan. 20, 1843: _Rev. Stat. of Ia._ (1843), 237-41.
[452] Act of Jan. 17, 1846: _Laws of Ia._ (1845-46), 23.
[453] _Code of Ia._ (1851), 223.
Thus matters stood until 1855, when the worthy legislators managed
to put the law in a curiously awkward shape. It was then decreed
that "hereafter no divorce otherwise than from bed and board shall
be granted except" (1) where either spouse shall commit adultery;
(2) be convicted of felony; (3) was impotent at the time of the
marriage; or (4) wilfully deserts the other for the space of
three years. "In all other enumerated causes heretofore deemed
sufficient"--continues the statute--"no divorce otherwise than a
divorce from bed and board shall be granted."[454] This scheme was
short-lived. An act of 1858 revives the law as it stood in 1851,
except that the term of wilful desertion was extended to two years
and the omnibus clause was omitted, thus leaving seven grounds of
petition in force.[455]
[454] Act of Jan. 24, 1855: _Laws of Ia._ (1854-55), 112, 113.
[455] Act of March 15: _Laws of Ia._ (1858), 97, 98.
The present law of Iowa governing the causes of divorce took its
rise in the code of 1873. The district court in the county where
the plaintiff or defendant resides still has jurisdiction. Limited
divorce is not recognized, but "it appears that courts of equity
will grant alimony without divorce to a wife where she is separated
from her husband because of his misconduct, though no express
statutory provision is found authorizing such proceeding."[456] A
full divorce may be decreed against the husband (1) when he has
committed adultery subsequent to the marriage; (2) when he wilfully
deserts his wife and absents himself without reasonable cause for
the space of two years; (3) when after marriage he is convicted of
felony; or (4) becomes addicted to habitual drunkenness; or (5) when
he is guilty of such inhuman treatment as to endanger the life of
his wife; and against the wife, for the five causes just enumerated,
and also (6) when at the time of the marriage she was pregnant
by a man other than her husband, unless the husband then had an
illegitimate child or children living and the fact was unknown to
her.[457]
[456] WRIGHT, _Report_, 96. _Cf._ Graves _v._ Graves, 36 _Ia._,
310; Whitcomb _v._ Whitcomb, 46 _Ia._, 437.
[457] _Cf._ _Ann. Code of Ia._ (1897), 1135-47; and _Code of Ia._
(1873), 399-401; also _Laws of Ia._ (1870), 429 (jurisdiction).
The divorce legislation of Kansas begins in 1855, the next year
after the territory was erected. The grounds on which the aggrieved
may secure a complete dissolution of the matrimonial bond are (1)
impotence continuing from the time of the marriage; (2) bigamous
marriage; (3) adultery; (4) wilful desertion and absence for two
years without reasonable cause; (5) conviction of felony or infamous
crime; (6) habitual drunkenness for two years; (7) cruel and
barbarous treatment endangering life; (8) intolerable indignities
offered to the person; (9) vagrancy of the husband.[458] In 1859
this law gave place to another, by which the fifth, eighth, and
ninth causes above enumerated were omitted; the term of wilful
absence, under the fourth head, was reduced to one year; and
habitual drunkenness became a cause, without specification of the
time during which it must have existed.[459] The very next year this
plan was in its turn superseded. A new act allowed separate alimony
without dissolution of marriage, and sanctioned eleven grounds
of total divorce. The first four of these are identical with the
corresponding numbers in 1855, as modified in 1859. In addition are
approved (5) pregnancy of the wife at the time of the marriage by
a man other than the husband; (6) extreme cruelty; (7) fraudulent
contract; (8) gross neglect of duty; (9) habitual drunkenness; (10)
sentence for crime and imprisonment therefor in a penitentiary,
provided complaint be filed during the term of confinement; (11)
when one person has secured a divorce in another state or territory,
leaving the obligation binding on the other.[460]
[458] _Stat. of Kan._ (1855), 310, 311.
[459] Act of Feb. 7: _Gen. Laws of Kan._ (1859), 385.
[460] Act of Feb. 27: _Gen. Laws of Kan._ (1860), 105-10. An Act
of June 4, 1861, provides that a person presenting a copy of an
act of the Territory of Kansas by which he has been divorced
"shall be entitled to a decree of divorce without issuing summons
thereon."--_Gen. Laws_ (1861), 146.
The eleventh cause just specified was dropped in 1868. The remaining
ten were then re-enacted;[461] and these grounds, without addition
or essential change, constitute the law of Kansas at the present
time. In this state there is no separation from bed and board.
But "the wife may obtain alimony alone from the husband without
a divorce ... for any of the causes for which a divorce may be
granted."[462] By the constitution, jurisdiction in all divorce
actions is vested in the district courts;[463] and the supreme court
has authority when suits are brought up on error.[464]
[461] "Code of Civil Procedure," approved Feb. 25, 1868, Art.
XXVIII: in PRICE, RIGGS, AND MCCAHON, _Gen. Stat. of Kan._,
757-59. The law of 1868 reappears in DASSLER, _Laws of Kan._
(1876), II, 761-63; _ibid._ (1879), 690-92.
[462] _Laws of Kan._ (1897), II, 273-77; DASSLER, _Gen. Stat._
(1901), 1055.
[463] Art. II, sec. 18, Const. of 1859.
[464] See Ulrich _v._ Ulrich, 8 _Kan._, 402. _Cf._ Wesner _v._
O'Brien, 1 _Ct. App._, 416; and McPherson _v._ the State, 56
_Kan._, 140 ff.
Both kinds of separation are provided for by the Nebraska law of
1856; and a marriage is then declared to be completely dissolved
without decree in case of conviction and imprisonment for life. The
district court of the county where the married persons or one of
them resides is empowered to grant absolute divorce on complaint of
the aggrieved for (1) adultery; (2) physical incompetency at the
time of the marriage; (3) sentence to imprisonment for three years
or more, no pardon effecting a restoration of conjugal rights; (4)
two years' wilful abandonment without good cause; (5) habitual
drunkenness. The same tribunal may decree either a limited or a full
divorce for (1) extreme cruelty; or (2) two years' utter desertion
by either spouse; and (3) in favor of the wife, when the husband,
being of sufficient ability, shall grossly or wantonly and cruelly
refuse or neglect to provide for her.[465] No essential change
appears in the statutes until 1875, when imprisonment for life was
made a sixth ground of absolute divorce;[466] and so the law of
Nebraska remains at the present hour.[467]
[465] Act of Jan. 26: _Laws_ (1856), 154-59.
[466] Act of Feb. 19: _Laws_ (1875), 80. _Cf._ _Gen. Stat. of
Neb._ (1873), 344-51; and _Stat. of Neb._, in force Aug. 1,
1867, 128-35, where the causes approved in 1856 appear without
essential change.
[467] _Compiled Stat._ (1901), 577. The law regarding
jurisdiction is the same as in 1856.
Separation from bed and board has at no time been authorized by
the laws of Colorado. The district courts have jurisdiction. Full
divorce may now be granted in favor of the aggrieved on eight
grounds; and in this regard there have been few changes since
the first statute of 1861. The present causes are (1) impotence
continuing from the time of the marriage or originating thereafter
in consequence of immoral or criminal conduct; (2) bigamous
contract; (3) adultery; (4) one years' wilful desertion and absence
without reasonable cause (5) extreme or repeated acts of cruelty,
consisting as well in the infliction of mental suffering as of
bodily violence; (6) failure on the part of the husband, being in
good bodily health, to make reasonable provision for his family for
the space of one year; (7) habitual drunkenness of either spouse for
the same period; (8) conviction of felony.[468]
[468] Act of April 3, 1893: _Laws of Col._, 236, 237; also in
MILLS, _Ann. Stat._ (1897), III, 434. The sixth cause was added
in 1881. At the same time the term of habitual drunkenness was
reduced to one year, instead of two years, as by the law of
1861; while desertion and departure from the territory "without
intention of returning," until then a ground for divorce when
committed by the husband, was made a ground when committed by
either party: _Laws of Col._ (1881), 112; also in _Gen. Stat._
(1883), 397 ff. The first cause, in its present form, arose in
_Laws of Col._ (1885), 189, and it differs somewhat from the
original provision in _ibid._ (1861-62), 360.
Since the original statute of 1870, in Wyoming, a bigamous contract
or a marriage where the persons are related within the forbidden
degrees, or where either is insane or an idiot, is void without
judicial decree.[469] In that state separation from bed and board
has never been sanctioned. Under the existing law, as it has stood
since 1882, absolute divorce is allowed either person when aggrieved
for (1) adultery; (2) physical incompetence continuing from the
time of the marriage; (3) conviction of a felony and imprisonment
therefor in any prison, no subsequent pardon effecting a restitution
of conjugal rights; (4) wilful desertion for one year; (5) when
either husband or wife has become a habitual drunkard; (6) extreme
cruelty; (7) neglect of the husband for the period of one year to
provide the common necessaries of life, unless such neglect is
the result of poverty which he could not have avoided by ordinary
industry; (8) indignities rendering the condition of either spouse
intolerable; (9) conduct on the part of the husband constituting
him a vagrant within the meaning of the law; (10) when before
the marriage or its solemnization either person shall have been
convicted of a felony or infamous crime in any state, territory, or
count[r]y without knowledge of the fact by the other at the time of
the marriage; (11) when the intended wife at the time of contracting
the marriage or its solemnization is pregnant by any man other than
her intended husband, and without the latter's knowledge at the time
of the solemnization.
[469] Act in force Jan. 1, 1870: _Laws_ (1869), 274; VAN ORSDEL
AND CHATTERTON, _Rev. Stat._ (1899), 794.
Although there is no limited divorce in Wyoming, the law in certain
cases allows separate alimony to be granted to the wife without a
formal decree of separation.[470]
[470] Act of March 8: _Laws_ (1882), 73-81; _Rev. Stat._ (1887),
sec. 1571, pp. 419-24; also VAN ORSDEL AND CHATTERTON, _Rev.
Stat._ (1899), 794-800. The first six of the causes above
enumerated were introduced by the act which came into force
Jan. 1, 1870: _Laws_ (1869), 274-81; but then under the third
head, conviction and imprisonment for three years or more were
necessary to constitute a ground; and by the sixth cause it was
required that one of the parties should be "repeatedly guilty of
such unhuman treatment as shall endanger the life of the other."
The remaining five causes first appeared in 1882.
The legislation of Utah begins in 1852 with an act so faulty that
its consequences have become notorious in the divorce annals of
the United States. A vicious residence clause, coupled with a
loose requirement regarding notice and an "omnibus" provision
among the enumerated grounds of complaint, became in effect a
standing temptation to clandestine divorce seekers from outside the
territory. It is formally declared that the court of probate of the
county of the plaintiff shall have jurisdiction in all petitions,
and these are to be made in writing upon oath or affirmation
setting forth the grounds of action. "If the court is satisfied,"
continues the statute, "that the person so applying is a resident
of the Territory, or wishes to become one; and that the application
is made in sincerity and of" the plaintiff's "own free will and
choice, and for the purpose set forth in the petition; then the
court may decree a divorce from the bonds of matrimony" against the
defendant "for any of the following causes, to wit": (1) impotence
at the time of the marriage; (2) adultery; (3) wilful desertion
or absence without reasonable cause for more than one year; (4)
habitual drunkenness subsequent to the marriage; (5) inhuman
treatment endangering life; (6) "when it shall be made to appear
to the satisfaction and conviction of the court, that the parties
cannot live in peace and union together, and that their welfare
requires a separation." Nevertheless, the courts are encouraged
to adopt a cautious and conservative policy. They are allowed to
defer "their decree of divorce, when the same is applied for, to
any specified time, not exceeding one year, when it appears" that a
compromise may be made; and "during the time of such deference ... ,
the bonds and engagements of matrimony may not be violated by the
parties." Furthermore, the court is empowered to punish by fine or
imprisonment or both any person "who shall stir up unwarrantable
litigation between husband and wife, or seek to bring about a
separation between them."
This statute was doubtless made in good faith. For, although it
remained in force without change for a quarter of a century, it does
not appear that the Latter Day Saints showed any strong tendency
to take advantage of its glaring defects. But it is not surprising
that evil should come of it. The petitioner in a divorce suit
need not be a "_bona fide_ resident of the territory. The formal
expression of an intention to become a resident was all that was
required. The plea of a citizen of any part of the United States
that he intended to become a citizen of Utah was entertained equally
with that of a regularly domiciled resident."[471] Besides, under
the "blanket" provision anything might be alleged in the petition
as a ground for action. The natural result was that certain sharp
lawyers in eastern cities seized the opportunity to promote
clandestine divorce on a large scale. Through their skilful plans
and the connivance of local judges, the courts of several counties
were converted into veritable "divorce bureaus," so that between
1875 and 1877 there was a surprising increase in the annual crop
of divorce decrees. Accordingly, in 1878 the assembly passed a
statute which effectually put an end to this anomalous state of
affairs. One year's _bona fide_ residence was now required; a
decree was forbidden in case of default of the defendant except on
legal testimony; better provisions for notice were made; and the
"omnibus" clause was abandoned. By this act, separation from bed
and board is not provided for; but an absolute divorce, in favor
of the aggrieved, may be granted for (1) impotence at the time of
marriage; (2) adultery; (3) wilful desertion for more than one year;
(4) wilful neglect of the husband to provide for the wife the common
necessaries of life; (5) habitual drunkenness; (6) conviction of
felony; (7) cruel treatment, to the extent of causing great bodily
injury or great mental distress.[472] To these grounds in 1903 was
added (8) permanent insanity, when the defendant has been duly
declared insane five years before.[473] Furthermore, by an act of
1896 separate maintenance without a decree of divorce is allowed the
wife for desertion by the husband or when, without her fault, she is
living separate from him.[474]
[471] WRIGHT, _Report_, 203-6, 156.
[472] Act of Feb. 2: _Laws_ (1878), 1, 2; also _Rev. Stat. of
Utah_ (1898), 333, 334.
[473] _Laws of Utah_ (1903), 39, 40.
[474] _Laws_ (1896), 111.
By an act of 1853 the legislature of Oregon Territory allows divorce
petitions presented under oath to be determined by the district
court of the county in which the cause occurs, or in which the
defendant resides or is found, or in which the plaintiff resides,
if in this last case it be either the county in which the parties
last cohabited or that in which the plaintiff has resided for six
months next preceding the action. Absolute divorce in favor of the
aggrieved is permitted on ten grounds. These are (1) impotence
continuing since marriage; (2) adultery committed since marriage
and remaining unforgiven; (3) bigamous contract; (4) compulsion or
gross fraud in procuring the marriage, if a rescission be sought in
a reasonable time after removal of the restraint or discovery of
the fraud; (5) wilful desertion for two years without reasonable
cause; (6) conviction of felony or infamous crime; (7) habitual
gross drunkenness contracted since marriage; (8) harsh and cruel
treatment; (9) personal indignities rendering life burdensome; (10)
six months' voluntary neglect of the husband to provide the wife
with a home and the common necessaries of life.[475] This statute
was, however, of short duration. In 1854 the third and fourth
causes were dropped; bigamous contracts and those entered into
through compulsion or fraud being now properly treated as grounds
for annulment of void or voidable marriages. The remaining eight
causes recognized in 1853 were retained, except that the term of
wilful desertion was reduced to one year; and a period of one year
was likewise fixed in case of voluntary neglect to provide.[476]
Eight years later neglect to provide ceased to be a legal ground
of complaint. At the same time it was enacted that "habitual
gross drunkenness" to constitute a cause must exist for two years
immediately before the commencement of the suit; and the period of
wilful desertion was extended to three years.[477]
[475] Act of Feb. 1, 1853: _Gen. Laws of Ore._ (1852-53), 49-51.
[476] Act of Jan. 17, 1854: _Stat. of Ore._ (1853-54), 494-97.
_Cf._ also the same, _ibid._ (1854-55), 536-41.
[477] Act of Oct. 11, 1862: _Laws_, secs. 485 ff.; and the
same in DEADY AND LANE, _Organic and Other Gen. Laws of Ore.,
1843-1872_ (1874), 208-12.
The law governing the grounds of action, as it still exists in
Oregon, took its present form in 1887; and, with the exception
of the one clause omitted in 1862, it is practically the same as
it was established in 1854. Separation from bed and board is not
recognized. The circuit courts, sitting at least twice a year in
each county, have jurisdiction. A full divorce may be obtained on
petition of the aggrieved for (1) impotence; (2) adultery; (3)
conviction of felony; (4) habitual gross drunkenness contracted
since marriage and continuing for one year prior to the commencement
of the suit; (5) wilful desertion for the period of one year; (6)
cruel and inhuman treatment or personal indignities rendering life
burdensome.[478]
[478] Act of Feb. 27: _Laws_ (1887), 52, 53; same in _Codes and
Stat. of Ore._ (1902), I, 275. On cruelty as a cause see Morris
_v._ Morris, 73 _Am. Dec._, 619-31.
The divorce laws of Washington have been remarkably free from
violent changes. The current of legislation has run smoothly
along. Separation from bed and board has never been provided for;
but eight causes of absolute divorce were recognized by the first
territorial act on the subject in 1854. These are (1) force or
fraud in procuring the marriage, provided there be no subsequent
voluntary cohabitation; (2) adultery unforgiven, if application be
made within one year after knowledge of the offense; (3) impotence;
(4) abandonment for one year; (5) cruel treatment; (6) habitual
drunkenness; (7) neglect or refusal of the husband to make suitable
provision for his family; (8) imprisonment in the penitentiary,
if complaint be filed during the term of such confinement.[479]
In 1860 was added a new ground in the form of an "omnibus"
provision. A divorce was then permitted on application of either
spouse (9) "for any other cause deemed by the court sufficient, or
when the court shall be satisfied that the parties can no longer
live together."[480] Thus the law remained without change for
twenty-five years; but in 1885 it was provided (10) that in "case
of incurable, chronic mania or dementia of either party, having
existed for ten years or more, the court may in its discretion
grant a divorce."[481] Finally in 1891 the list of grounds for full
dissolution of wedlock sanctioned by the present code of Washington
was completed. A full divorce is now allowed, in modification of
the fifth cause above enumerated, (11) for "personal indignities
rendering life burdensome."[482] Originally the district courts were
vested with jurisdiction, but since 1889 the superior courts in
the separate counties have had authority in all cases of divorce,
alimony, and annulment.[483]
[479] _Stat. for the Ter. of Wash._ (1854), 405-7.
[480] Act of Jan. 23: _Acts_ (1860), 318-20.
[481] Act of Dec. 22, 1885: _Laws_ (1885-86), 120.
[482] Act of Feb. 24: _Laws_ (1891), 42; also in _Ann. Codes and
Stat. of Wash._ (1897), II, 1595-1600.
[483] _Const. of 1889_, Art. IV, secs. 5, 6.
In 1851, at the second session of the state legislature, California
granted the district courts "within their respective districts"
jurisdiction in divorce questions. Nine causes of "divorces from bed
and board, or from the bonds of matrimony," were then recognized.
But in 1874 three of these--natural impotence, force or fraud, and
the marriage of a female under the age of fourteen years without
consent of parent or guardian or without ratification by her
after reaching that age--were dropped, and thereafter they were
rightly treated as grounds for annulment of voidable contracts. The
remaining six causes were then re-enacted, with some changes in the
prescribed conditions, but only as grounds of absolute divorce. The
statute of 1874 is still in force, full dissolution of wedlock,
but not separation from bed and board, being sanctioned for (1)
adultery; (2) extreme cruelty; (3) wilful desertion; (4) wilful
neglect; (5) habitual intemperance; (6) conviction of felony.
After this formal enumeration of the grounds of petition, the
first code of California carefully defines the terms employed and
prescribes the conditions under which the law shall take effect.
Thus "wilful desertion, wilful neglect, or habitual intemperance
must continue for one year before either is a ground for divorce."
By the original act of 1851, it may be noted, a period of three
years was prescribed for both wilful desertion and wilful neglect to
provide. In 1853, however, the term of wilful desertion was reduced
to two years; and the same time was fixed for wilful neglect in
1870. A period during which habitual intemperance must exist to
constitute a cause of divorce was not mentioned until the statute
of 1874, by which, in this case as well as in the two others above
named, the one-year term was required. By the existing code extreme
cruelty is defined as the "infliction of grievous bodily injury or
grievous mental suffering."[484] "Wilful desertion is the voluntary
separation of one of the married parties from the other with the
intent to desert." But when one person is induced by the stratagem
or fraud of the other "to leave the family dwelling-place, or to
be absent, and during such absence the offending party departs
with intent to desert the other, it is desertion by the party
committing the stratagem or fraud, and not by the other." In like
manner "departure or absence of one party from the dwelling-place,
caused by cruelty or by threats of bodily harm from which danger
would be reasonably apprehended from the other, is not desertion by
the absent party but it is desertion by the other." Separation by
consent, with or without the understanding that one of the married
persons will apply for a divorce, is not desertion. Moreover,
"absence or separation, proper in itself, becomes desertion
whenever the intent to desert is fixed during such absence or
separation."[485] Wilful neglect is defined as the neglect of the
husband to provide for his wife the common necessaries of life,
he having the ability to do so; or his failure to provide as the
result of "idleness, profligacy, or dissipation."[486] Finally,
habitual intemperance is described as "that degree of intemperance
from the use of intoxicating drinks which disqualifies the person a
great portion of the time from properly attending to business, or
which would reasonably inflict a cause of great mental anguish" upon
the innocent person.[487] In like spirit the reasons for denying a
decree are minutely specified by the law. Original jurisdiction in
all questions of divorce and annulment of marriage is now vested
in the superior courts in their respective counties or other
districts.[488]
[484] On cruelty see Powelson _v._ Powelson, 22 _Cal._, 358;
Morris _v._ Morris, 14 _Cal._, 76; Kelly _v._ Kelly, 1 _West
Coast Rep._, 143; Eidenmuller _v._ Eidenmuller, 37 _Cal._, 394;
Johnson _v._ Johnson, 14 _Cal._, 459; Pierce _v._ Pierce, 15 _Am.
Dec._, 210, note. In general Poore _v._ Poore, 29 _Am. Dec._, 664.
[485] Sec. 96 of the "Civil Code" also declares that "persistent
refusal to have reasonable matrimonial intercourse as husband
and wife, when health or physical condition does not make such
refusal reasonably necessary, or the refusal of either party to
dwell in the same house with the other party, when there is no
just cause for such refusal, is desertion."--DEERING, _Codes and
Stat._ (1886), II, 34; POMEROY, _Civil Code_ (1901), 48.
On desertion see especially Hardenberg _v._ Hardenberg, 14
_Cal._, 654; Benkert _v._ Benkert, 32 _Cal._, 467; Morrison _v._
Morrison, 20 _Cal._, 431; Christie _v._ Christie, 53 _Cal._, 26;
also Stein _v._ Stein, 5 _Col._, 55; Pilgrim _v._ Pilgrim, 57
_Iowa_, 370.
[486] For interpretation of the law regarding neglect to provide
see Devoe _v._ Devoe, 51 _Cal._, 543; Washburn _v._ Washburn, 9
_Cal._, 475; Rycraft _v._ Rycraft, 42 _Cal._, 444.
[487] On habitual intemperance consult Mahone _v._ Mahone, 19
_Cal._, 626, 629; Haskell _v._ Haskell, 54 _Cal._, 262.
[488] DEERING, _Codes and Stat. of Cal._ (1886), III, 31. The
development of the law of California regarding divorce, as given
in the text, may be traced in _Stat._ (1851), 186, 187; _ibid._
(1853), 70; _Comp. Laws_ (1853), 371, 372; act of March 12,
1870: in _Stat._ (1869-70), 291; act of March 30, 1874: in _Acts
Amendatory of the Codes_, 181-91; POMEROY, _Civil Code_ (1901),
40-62.
The California codes and decisions, as is well understood, have
been freely adopted or followed by a number of western states.
This is especially true regarding divorce legislation. The causes
and conditions of action recognized by California law have often
been accepted outright.[489] Such, for example, is the case in
Montana. By the code of 1895 the same six causes sanctioned by the
law of California since 1874 are recognized; while the prescribed
definitions, already in part summarized from that law, are almost
exactly reproduced. The grounds for dissolution of wedlock are
identical, except in their phraseology, with those authorized by the
original Montana act of 1865, save that in addition impotence and
bigamous contract were then enumerated among the legal causes of
divorce. There is no separation from bed and board in Montana; but
the wife may be allowed separate maintenance, although a decree of
divorce is denied. Since 1865 the respective district courts, on
the chancery side, have had jurisdiction in absolute divorce and in
all questions of alimony and annulment of voidable contracts.[490]
[489] For some account of the influence of the California Codes
see HEPBURN, _Hist. Dev. of Code Pleading in America and Eng._
(Cincinnati, 1897), especially 93 ff., 104 ff., 160.
[490] Compare the act of Feb. 7, 1865: in _Acts_ (1864-65), 430,
431; and _Comp. Codes and Stat. of Mont._ (1895), 478-80.
What has just been said of Montana may be repeated for Idaho, where
the California system was adopted in 1887.[491] By an act of 1895,
however, incurable insanity was admitted as a seventh cause of full
divorce.[492] In this case, as in all the others since 1864, the
district court in the county of the plaintiff has jurisdiction.
Earlier the laws relating to the causes were somewhat less closely
patterned upon the California statutes. The act of 1864 allows a
full divorce for (1) impotence at the time of the marriage; (2)
adultery committed since marriage and remaining unforgiven; (3)
wilful desertion for two years; (4) conviction of felony or infamous
crime; (5) habitual gross drunkenness, contracted since marriage,
incapacitating the offender from contributing his or her share to
the support of the family; (6) extreme cruelty; (7) neglect of the
husband for two years to provide the common necessaries of life,
unless such neglect is the result of poverty which could not be
avoided by ordinary industry.[493] Three years later the California
law, as it then stood, allowing nine causes of full divorce, was
adopted, except that the terms of habitual intemperance and wilful
neglect were each fixed at two years, and a period of one year was
made sufficient for wilful desertion. It should also be noted that
this Idaho statute, unlike the contemporary law of California, made
no provision for partial divorce.[494] It was superseded in 1875 by
a new act[495] which is identical in its provision regarding the
grounds of action with that of 1867; and no further change was made
until the present California plan was sanctioned in 1887.
[491] _Rev. Stat. of Idaho_ (1887), 303-7.
[492] But a divorce is not allowed, under this provision, unless
the insane person shall have been regularly and duly confined in
an insane asylum of the state for at least six years immediately
before the action: act of Feb. 4: _Gen. Laws_ (1895), 11, 12.
By an act of Feb. 14: _Gen. Laws_ (1899), 232, 233, were added
the words, "nor unless it shall appear to the court that such
insanity is permanent and incurable;" and now it is sufficient
if the previous confinement has been in an asylum "of a sister
state," provided the plaintiff has been an actual resident for
one year: _ibid._, (1903), 332, 333.
[493] Act of Jan. 16, 1864: in _Laws of the Ter. of Idaho_
(1863-64), 615-18.
[494] Act of Jan. 9: _Laws_ (1867), 69-71.
[495] Act of Jan. 13, 1875: _Comp. and Rev. Laws of Idaho_
(1875), 639-41.
The experience of the Dakotas has been very similar to that of
Idaho and Montana, so far as the final results are concerned;
but the early territorial legislation was often clumsy in form,
vicious in character, and subject to frequent and violent changes.
The original act of 1864 grants the several district courts
jurisdiction in petitions for absolute dissolution of marriage
on suit brought in the county where the persons or one of them
resides, for (1) adultery; (2) impotence; (3) imprisonment in a
penitentiary subsequently to the marriage, no pardon effecting a
restoration of conjugal rights; (4) cruel and inhuman treatment,
"whether practised by using personal violence, or by any other
means"; (5) habitual drunkenness for one year next before filing
the complaint; (6) "when it shall be made fully to appear that
from any other reason or cause existing, the parties cannot live
in peace and happiness together, and that their welfare requires a
separation."[496] Separation from bed and board is not contemplated
by the law of 1864; but in 1866 a new statute appears by which both
kinds of divorce are provided for. A full divorce is permitted
only on the scriptural ground; but a partial divorce "for life or
for a limited time" may be decreed in favor of the aggrieved for
(1) cruel treatment; (2) conduct rendering cohabitation unsafe or
improper; (3) abandonment, accompanied by refusal to fulfil the
matrimonial obligations sanctioned by the statute. If in any case
a decree of separation be denied, the court may provide for the
separate maintenance of the wife and children by the husband or out
of his property.[497] The very next year this act was replaced by
another which allows the aggrieved spouse absolute divorce for (1)
bigamous contract; (2) wilful absence for five years; (3) adultery;
(4) impotency; (5) pregnancy of the wife at the time of the marriage
by a man other than the husband without the latter's knowledge;
(6) extreme cruelty; (7) habitual drunkenness; (8) imprisonment in
a penitentiary anywhere in the United States for violation of the
criminal laws;[498] (9) whenever it shall be made to appear that the
husband or wife of the applicant "has obtained a decree of divorce
in any of the courts of any other territory or state, by virtue of
which the party who shall have obtained such decree shall have been
released from the obligation of the marriage contract, while the
same remains binding upon the other party." Limited divorce is not
mentioned by this statute; but, in place of it, a wife may obtain
separate alimony for (1) the husband's adultery; (2) his gross
neglect of duty; (3) abandonment by him without good cause; (4)
where there is a separation in consequence of his ill-treatment;
(5) his habitual drunkenness; or (6) his confinement in any prison
in the country, or for any crime warranting such punishment in the
territory.[499]
[496] Act of Jan. 15: in _Gen. and Private Laws_ (1864), 19-26.
[497] Act of Jan. 12, 1866: _Laws, Memorials, and Resolutions_
(1865-66), 13-16.
[498] If for a crime of the same grade as warrants such
imprisonment in the territory, and if application be made during
the term of confinement.
[499] Act of Jan. 10, 1867; in _Gen. Laws_ (1866-67), 45-52.
Only four years elapsed before the restless lawmaker was again at
work. By an act of 1871 a divorce from bed and board or from the
bonds of matrimony may be granted (1) for impotence at the time of
marriage; (2) "when the female at the time of the alleged marriage
was under the age of fourteen years, and the alleged marriage was
without the consent of her parents, or guardians, or other persons
having the legal custody or charge of her person; and when such
marriage was not voluntarily ratified on her part" after the
attainment of that age; (3) for adultery; (4) for extreme cruelty
by the infliction of grievous bodily or mental suffering; (5) for
habitual intemperance; (6) for two years' wilful desertion; (7) for
having the ability to provide and failure so to do on account of
idleness, profligacy, or dissipation; (8) "when from threatening
words or acts, the weaker party feels in danger of bodily injury;"
(9) when the consent was obtained by "force, fraud, intimidation,
deception, or influence of stronger minds;" (10) for conviction of
felony after marriage.[500] Here matters rested until 1877, when
the California system, including the six causes and the careful
definitions of the code, was adopted.[501] This plan without change
is retained in the existing laws of South Dakota;[502] as also in
those of North Dakota, except that between 1899 and 1901, following
the lead of Idaho, incurable insanity for two years was admitted
as a seventh ground of absolute divorce.[503] In neither of these
states is partial divorce recognized. The district courts in North
Dakota still have original jurisdiction; while in South Dakota
authority is vested in the circuit courts within the respective
circuits or their subdivisions.[504]
[500] Act of Jan. 13, 1871: in _Gen. Laws_ (1870-71), 414. In the
same volume, curiously enough, the civil code of Jan. 12, 1866,
including the divorce law of that year, as given in the text, is
re-enacted; and so the act of Jan. 10, 1867, is entirely ignored.
But the early legislation of Dakota is exceptionally bungling and
confusing.
[501] _Rev. Codes of the Ter. of Dak._ (1877), 215, 216; also
in LEVISSEE, _Ann. Codes_ (1883), II, 747-52. By the code of
1877 the term of wilful desertion, wilful neglect, and habitual
intemperance was fixed at two years; but the one-year period was
substituted in 1881: Act of March 1, _Laws_ (1881), 66.
[502] _Stat. of S. D._ (1899), II, 1025-30; _Rev. Codes_ (1903),
598-603.
[503] Act of March 6: _Acts_ (1899), 95; but insanity as a
ground is omitted in _Laws_ (1901), 81, 82. There is no partial
divorce in North Dakota; but, though a decree be denied, the
court may provide for the maintenance of the wife and children
by the husband: _Rev. Codes_ (1895), 614. _Cf._ McFarland _v._
McFarland, 2 _N. W. Rep._, 269; Ross _v._ Ross, 10 _N. W. Rep._,
193.
[504] _Rev. Codes of N. D._ (1895), 611-15, 929; _Stat. of S. D._
(1899), II, 1489; I, 267.
Nevada has likewise closely followed the example of California.
Separation from bed and board has at no time been provided
for. Bigamous marriages and those within the forbidden degrees
of consanguinity are void without decree or other legal
proceedings.[505] But since 1875, with one exception, the grounds of
absolute divorce have been practically the same as those prescribed
by the California code, although they are differently expressed, and
there are not the same minute provisions regarding the application
of the law and the conditions of action. On complaint of the
aggrieved the courts are now authorized to dissolve the bonds of
wedlock for (1) impotence at the time of the marriage continuing
to the time of divorce; (2) adultery since marriage, remaining
unforgiven; (3) wilful desertion for one year; (4) conviction of
felony or infamous crime; (5) habitual gross drunkenness, contracted
since marriage and incapacitating the offender from contributing his
or her share toward the support of the family; (6) extreme cruelty;
(7) neglect of the husband for the period of one year to provide
the common necessaries of life, unless such neglect is the result
of poverty which could not have been avoided by ordinary industry.
Thus the laws of Nevada regarding the causes of divorce have been
remarkably free from change; for the statute of 1875 in this regard
is identical with the original act of 1861, except that by the
latter the terms of wilful desertion and wilful neglect to provide
are each fixed at two years.[506]
[505] Since 1861 these marriages have thus been void without
judicial proceedings; while those below the age of consent, or
when there was want of understanding, or when obtained by fraud
with no subsequent voluntary cohabitation, are void from the
time a decree of nullity is pronounced. But a marriage shall in
no case be adjudged a nullity, on the ground of being under age
of consent, if the parties cohabited freely after reaching that
age; nor the marriage of an insane person, if there be similar
cohabitation after restoration to reason: act of March 28: _Laws_
(1861), 96, 97; same in _Comp. Laws_ (1900), 115.
[506] _Cf._ the act of Nov. 28: _Laws_ (1861), 96-99; that of
Feb. 15: _Laws_ (1875), 63; and _Comp. Laws_ (1900), 115-18.
Partial divorce is not recognized; but the common law, as
administered by the ecclesiastical courts, is a part of the law
of Nevada, so far as not superseded by statute: Wuest _v._ Wuest,
17 _Nev._, 216. For the interpretation of extreme cruelty see
Reed _v._ Reed, 4 _Nev._, 395; Gardner _v._ Gardner, 23 _Nev._,
207; Kelley _v._ Kelley, 18 _Nev._, 48.
For Alaska the act of Congress does not authorize partial divorce;
but marriage may be dissolved for (1) impotency; (2) adultery; (3)
conviction of felony; (4) two years' wilful desertion; (5) "cruel
and inhuman treatment, calculated to impair health or endanger
life;" or (6) habitual gross drunkenness contracted since marriage
and continuing one year before the suit.[507]
[507] _U. S. Stat. at Large_, XXXI, 408-10; _Laws of Alaska_
(1900), 243-46.
By the law of Hawaii both kinds of divorce are provided for.
Separation from bed and board forever or for a limited time will
be granted when either spouse has been guilty of (1) excessive and
habitual ill-treatment; or (2) habitual drunkenness; and (3) to
the wife for the husband's neglect or refusal to provide her with
the necessaries of life. At any time, on joint application of the
persons, with satisfactory evidence of reconciliation, the decree
of separation may be revoked by the court. According to a unique
scheme, the grounds of absolute divorce are arranged in two groups:
(1) A marriage will be dissolved, on petition of the aggrieved, when
either consort has (_a_) committed adultery; (_b_) is guilty of
three years' wilful and utter desertion; (_c_) has been sentenced
to imprisonment for life, or for seven years or more, no pardon
effecting a restitution of conjugal rights; or (_d_) has contracted
"the disease known as Chinese leprosy, and is incapable of cure."
(2) When one of the married persons has been guilty of (_a_) extreme
cruelty; or (_b_) habitual drunkenness; and (_c_) when the husband,
being of sufficient ability to provide suitable maintenance for his
wife, neglects or refuses so to do. But it is especially enacted
that if the person applying for a decree "shall not insist upon a
divorce from the bond of matrimony, a divorce only from bed and
board shall be granted." Jurisdiction is vested in the circuit
courts of the circuit where the persons last cohabited as husband
and wife; but no divorce for any cause will be allowed if they have
never so lived together in the territory.[508]
[508] _Civil Laws of the Hawaiian Islands_ (1897), 715-21.
_c_) _Remarriage, residence, notice, and miscellaneous
provisions._--It has been found convenient in the preceding section
to trace throughout the period the development of the New York
law regarding the remarriage of divorced persons. By the original
statute of 1787, it thus appears, the guilty defendant is forever
prohibited from marrying again. Under the acts of 1813 and 1827-28
the restriction is limited to the lifetime of the innocent former
spouse; and this rule is retained in the present law, although in
harmony with the practice elsewhere widely prevailing, the parties
to the action are at liberty to renew their matrimonial vows. The
defendant, however, may marry again in case the court in which the
judgment is given "shall in that respect modify such judgment,
which modification shall only be made upon satisfactory proof that
the complainant has remarried, that five years have elapsed since
the decree of divorce was rendered, and that the conduct of the
defendant since the dissolution of said marriage has been uniformly
good."[509] At no time, apparently, has any legal check been put
upon the immediate remarriage of the successful plaintiff after
final decree; and a way has been found by which the guilty defendant
may at once contract further wedlock through evasion of the statute.
In 1881 the precedent established by Massachusetts in 1829 was
followed by the New York court of appeals. It was then decided that
when a husband who has been divorced in New York for his adultery
"goes into another state for the purpose of evading our law, and
there contracts a second marriage during the lifetime of his former
wife, and immediately returns to and resides within this state,
such second marriage is, nevertheless, valid, and the issue thereof
legitimate."[510] On the other hand, it is held that the restraint
applies to the remarriage of divorced persons even when the divorce
was granted in another state. Thus dower was "denied on a showing
that the deceased husband, while a resident of Massachusetts, had
been divorced from his wife for his fault and later had removed
to New York and married the plaintiff while his former wife was
living. It was held that the New York statutes governed whether
the divorce was granted in that state or not, so long as the
marriage was celebrated in New York."[511] But elsewhere the courts
have taken the opposite position, holding that the restraint on
remarriage applies only to divorces granted in the state where it is
imposed.[512]
[509] _Rev. Stat._ (1889), IV, 2599; STOVER, _Code of Civil
Proced._ (1902), II, 1843. _Cf._ 5 BARBOUR, _Chancery Reports_,
117; 11 _N. Y._, 228; 34 _N. Y._, 643; 42 _N. Y._, 546; 2 HUN,
_N. Y. Supreme Court Reports_, 241; 92 _N. Y._, 146.
[510] Van Voorhis _v._ Brintnall, 86 _N. Y._, 18; reversing s.c.
23 HUN, _N. Y. Supreme Court Reports_, 260; as summarized in
BRIGHTLY, _Digest of the Decis. of all the Courts of N. Y._, II,
2531, 2532, where the later cases are cited. _Cf._ especially
Thorp _v._ Thorp (1882), 90 _N. Y._, 602; and Moore _v._ Hegeman
(1883), 92 _N. Y._, 521.
[511] H. J. WHITMORE, "Statutory Restraints on the Marriage of
Divorced Persons," _Central Law Journal_, LVII, 447; Smith _v._
Woodworth, 44 BARBOUR, _Chancery Reports_, 198.
[512] Bullock _v._ Bullock, 122 _Mass. Reports_, 3; Clark _v._
Clark, 8 CUSHING, _Mass. Reports_, 385; Succession of Hernandez,
46 _La. Ann._, 962; 15 _So. Rep._, 461.
During the century the statutes of New Jersey have in effect,
though not expressly, allowed either person absolute freedom of
remarriage after divorce.[513] A different rule has been followed
in Pennsylvania and Delaware. By a law of the former state in 1785,
"he or she, who hath been guilty of the adultery, may not marry the
person with whom the said crime was committed, during the life of
the former husband or wife."[514] This provision is still in force;
and, except in the single case specified, the law of that state
puts no restriction whatever upon the remarriage of either person
after a decree dissolving the marriage tie. Since 1832 with respect
to remarriage the law of Delaware has in substance been identical
with that of the sister-commonwealth, except that the prohibition of
marriage with the paramour is not confined to the lifetime of the
former spouse.[515]
[513] The law provides that the penalties for "polygamy" shall
not extend to persons marrying after having been lawfully
divorced from the bonds of matrimony: _Gen. Stat. of N. J._, I,
1057. _Cf._ _ibid._, II, 1267 ff.
[514] _Cf._ the act of 1785: CAREY AND BIOREN, _Laws of the
Com._, III, 105; PEPPER AND LEWIS, _Digest_, I, 1646, 1647.
[515] _Cf._ the act of February 3, 1832: _Laws_, 150, with _Rev.
Stat. of Del._ (1893), 598.
By their complete silence on the subject the statutes of Ohio appear
always to have allowed either person entire freedom of remarriage
after divorce. Since 1831 the same liberty has been expressly
granted by the laws of Indiana;[516] except that when the defendant
has been "constructively" summoned without other notice than
publication in a newspaper, the person obtaining a decree of divorce
is not permitted to marry again until the expiration of two years,
during which period the judgment may be opened at the instance of
the defendant.[517] But by the original act of 1818 the offender is
not released from the bonds of matrimony while his former spouse
is living.[518] This restriction is maintained by the statute
of 1824, unless the court in its discretion, "judging from the
circumstances of the case," shall expressly grant a release.[519]
In 1825 the legislature of Illinois required the court in a decree
of absolute divorce to prohibit the offender from remarrying within
two years.[520] After 1827 this provision was dropped;[521] and
at present Illinois, like New Jersey, through the remission of
the penalty for bigamy allows entire freedom in this regard.[522]
Michigan began with a severe rule. The territorial enactment of 1819
forbids the defendant adulterer to wed again until the complainant
be actually dead.[523] This provision was not long retained; and
the existing statute permits the court to decree that the person
against whom any divorce is granted shall not marry again within any
period not exceeding two years.[524]
[516] _Rev. Laws of Ind._ (1831), 214; _Rev. Stat._ (1838), 243;
_ibid._ (1843), 606; _ibid._ (1852), II, 237; _ibid._ (1896), I,
sec. 1048; BURNS, _Ann. Stat._ (1901), I, 1059.
[517] _Laws of Ind._ (1873), 108, 109; _Rev. Stat._ (1896), I,
sec. 1030. This section applies only to parties "constructively"
summoned: Sullivan _v._ Learned, 49 _Ind._, 252. The general
policy of the law is against disturbing divorces granted:
McJunkin _v._ McJunkin, 3 _Ind._, 30; McQuigg _v._ McQuigg, 13
_Ind._, 294.
[518] Act of Jan. 26, 1818: _Laws of Ind._ (1818), 228.
[519] _Rev. Laws of Ind._ (1824), 157.
[520] Act of Jan. 17: _Laws of Ill._ (1825), 169.
[521] The act of June 1, 1827: _Rev. Code_ (1827), 181, allows
the injured person to obtain a dissolution of the marriage
contract; but neither this nor any subsequent statute seems
expressly to forbid the defendant to remarry.
[522] HURD, _Rev. Stat._ (1899), 565.
[523] _Ter. Laws of Mich._, I, 496; see also act of April 12,
1827: _ibid._, II, 363-66. An act of this last date (_ibid._,
II, 543), for the punishment of crime, exempts persons marrying
again after divorce from the pains of bigamy, provided they may
do so by the terms of the decree or by those of the law where the
divorce was granted. The act of June 28, 1832 (_ibid._, III, 931,
932), is silent as to remarriage.
[524] HOWELL, _Gen. Stat._ (1890), III, 3605; MILLER, _Comp.
Laws_ (1899), III, 2666.
The legislation of the newer states of the Mississippi valley and
the Pacific slope discloses the same lack of harmony in dealing
with the question in hand. By the laws of Wyoming, Utah, and Nevada
either spouse, whether guilty or innocent, is left absolutely free
to contract further wedlock as soon as he likes after divorce.
At present the same is true of Iowa, although under the early
enactments the guilty defendant was forbidden to remarry.[525]
In Kansas, by a statute of 1855, the guilty person is restrained
from marrying again during five years unless so permitted by the
terms of the decree.[526] Between 1859 and 1881 entire freedom was
allowed.[527] Subsequently in that state it has been "unlawful for
either party ... to marry any other person within six months from
the date of the decree of divorcement," or, if appeal be taken,
"until the expiration of thirty days from the day on which final
judgment shall be rendered by the appellate court." Marriage in
violation of this statute is declared bigamy and void.[528] Nebraska
since 1885, Oregon since 1862, Washington since 1893, and Minnesota
since 1901, have each interdicted remarriage within the same period
of six months after a decree of divorce.[529] In Idaho since 1903
the term is "more than six months;" while in North Dakota since
1901 it is but three.[530] Since 1893 Colorado has gone farther,
requiring in such a case a delay of one year.[531] The same delay is
required in Wisconsin since 1901;[532] while in Montana, since 1895,
the innocent person must needs wait two years and the guilty person
three years before renewing the marital bond with anyone save the
former spouse.[533] South Dakota, when the cause is adultery, still
refuses, as in the territorial stage, to permit the guilty defendant
to rewed during the lifetime of the innocent plaintiff, unless,
indeed, with the latter.[534] In Alaska neither party may marry a
third person until proceedings on appeal are ended, or if no appeal
be taken, during one year, the statutory term for bringing such
action.[535]
[525] By the act of Jan. 24, 1855, the guilty party is prohibited
from remarrying: _Laws of Ia._ (1854-55), 112. The restriction
was dropped in 1858: _Laws_ (1858), 97, 98, 236: _Ann. Code_
(1897), 1135-47.
[526] _Stat. of Kan._ (1855), 312.
[527] _Gen. Laws of Kan._ (1859), 385. This and the later acts to
1881 are silent as to remarriage.
[528] _Laws of Kan._ (1889), 145; same in _Comp. Laws of Kan._
(1897), II, 276: "Every decree of divorce shall recite the day
and date when judgment was rendered in the cause, and that
the decree does not become absolute and take effect until the
expiration of six months from said time." _Cf._ the act of
March 5: _Laws of Kan._ (1881), 229-31, where the six-months'
prohibition first appears.
[529] The Nebraska law is peculiar in that, in addition to the
general prohibition of marriage in six months, it especially
forbids the defendant in error or appellee to marry again during
the pendency of proceedings in error or on appeal under the
penalties prescribed for bigamy: _Laws of Neb._ (1885), chap.
49, pp. 248, 249; _Comp. Stat. of Neb._ (1901), 582. See _Codes
and Stat. of Ore._ (1902), I, 280, 296; _Codes and Gen. Laws_
(1892), I, 458; being the same as act of Oct. 11, 1862: _Organic
and Other Gen. Laws of Ore., 1843-72_, 211, 218; _Ann. Codes and
Stat. of Wash._ (1897), II, 1599; _Laws_ (1893), 225.
[530] _Laws of N. D._ (1901), 81, 82; _Laws of Idaho_ (1908), 10,
11.
[531] _Laws of Col._ (1893), 240, 241; MILLS, _Ann. Stat._
(1897), III, 441, 442.
[532] "But upon application of such divorced person, any court of
record or presiding judge thereof, who granted the divorce, ...
may authorize" marriage within the year: _Acts of Wis._ (1901),
369.
[533] _Complete Codes and Stat. of Mont._ (1895), 480.
[534] _Stat. of S. D._ (1899), II, 1025, 1028; _Rev. Codes_
(1903), 602. This principle was adopted by the territorial
assembly: LEVISSEE, _Ann. Codes_ (1884), II, 750. Except for
a brief term in 1866, the earlier territorial laws allow
entire freedom of remarriage: see act of Jan. 12, 1866: _Laws,
Memorials, and Resolutions_ (1865-66), 14, forbidding the guilty
adulterer to remarry during the lifetime of the innocent spouse;
but in the next year this was replaced by a new law allowing
full liberty: Act of Jan. 10, 1867: _Gen. Laws, Memorials, and
Resolutions_ (1866-67), 45-52.
[535] _U. S. Stat. at Large_, XXXI, 408-10, 415.
Until very recently in California no clear restraint was put upon
further wedlock after full separation. In 1897, following the
example of Colorado, the legislature provided that in case of
dissolution a new marriage may validly be contracted by either
person only when the decree of divorce has been rendered at least
one year before.[536] This amendment, it seems, was designed
primarily to remedy an abuse arising in the uncertainties of
California law--one often encouraged by careless legislation in
the United States. Its purpose, says Judge Belcher in the opinion
below cited, "was to correct a great public evil which had become
too rife--to put a stop to marriages within the period allowed for
the appeal from the decree of divorce, which might be and sometimes
had been reversed, with great scandal to the parties who had
married again." In the meantime this new and stringent provision
has given occasion for still more serious evils originating in the
inharmonious laws of adjacent states. The statutes of Nevada, whose
borders are within easy reach of San Francisco, have not fixed
a period within which divorced persons may not contract further
wedlock. As a result, Reno has become the Gretna Green of California
couples who there seek to evade the interdict of their own law.
Whether a person who retains his domicile in California may contract
a valid marriage in Nevada within less than one year after having
been divorced in the former state is a question regarding which the
decisions of the superior courts long contradicted one another.[537]
But the supreme tribunal has just determined[538] that California
in this regard is to take her place by the side of New York and
Massachusetts, whose example Washington had already followed.[539]
To overcome the effect of this decision, the legislature has enacted
that if in any case the court "determines that a divorce ought to
be granted an interlocutory judgment must be entered, declaring
that the party in whose favor the court decides is entitled to a
divorce." After one year has expired, on its own motion or the
motion of either person, the court "may enter final judgment
granting the divorce," unless action on appeal or on a motion for
a new trial is pending. "In no case can a marriage of either of
the parties during the life of the other be valid in this state,
if contracted within one year after the entry of an interlocutory
decree." But this legislation,[540] it is believed, will be declared
unconstitutional by the supreme court.[541]
[536] "Sec. 61. A subsequent marriage contracted by any person
during the life of a former husband or wife ... , with any person
other than such former husband or wife, is illegal and void from
the beginning unless:
"1. the former marriage has been annulled or dissolved; provided,
that in case it be dissolved, the decree of divorce must have
been rendered and made at least one year prior to such subsequent
marriage."--Act of Feb. 25: _Stat. and Amend. to the Codes_
(1897), 34.
"Sec. 91. The effect of a judgment decreeing a divorce is to
restore the parties to the state of unmarried persons."--Act of
March 30, 1874: _Amendments to the Codes_ (1873-74), 189; also
in DEERING, _Codes and Stat. of Cal._ (1886), II, 31; POMEROY,
_Civil Code_ (1901), 44.
[537] In Abbie Rose Wood _v._ Estate of Joseph M. Wood, filed in
the superior court of San Francisco, June 14, 1900, Judge Belcher
decided that the marriage on Jan. 1, 1898, in Reno, Nev., of a
person divorced in California, Aug. 19, 1897, the former husband
still living, was not valid. He relies upon the words of nullity
in the amendment of 1897; and the fact that the person went to
another state solely for the purpose of getting married while
still retaining her domicile in California. "Section 61, Civil
Code, contains no penal clause, as stated; but it does contain
words of nullity, and words which suspend, as to third persons,
the operation of the decree ... ; and these cannot be avoided
by merely invoking another jurisdiction for that purpose. The
two sections (61 and 91, C. C.) are to be read together, and,
so read, their interpretation and meaning are free from either
uncertainty or ambiguity. The law of the domicile is invoked,
and the law of the domicile controls. No other jurisdiction can
relieve against it."--See _San Fran. Law Journal_ (July 2, 1900),
1.
In a case decided on Dec. 10, 1900, Judge Trout, of the superior
court of San Francisco, takes the same position as Judge Belcher.
On the other hand, on Dec. 4, 1900, Judge Hebbard, of the same
court, in Adler _v._ Adler, maintains the validity of a similar
Reno marriage. He holds that the California law "is in restraint
of marriage," since it fixes an arbitrary prohibitory period. "We
may imagine the reason which induced the passage of the section,
by an examination of the law of the State of Oregon upon the same
subject. In that state there is no fixed prohibitory period, but
the law is to the effect that, pending an appeal from a decree of
divorce, if one be taken, and, if not, during the time in which
it may be taken, the parties shall be incapable of contracting
marriage with a third person. In California an appeal from a
final judgment must be taken in six months; an appeal from an
order granting or refusing a new trial in sixty days. The great
majority of divorce cases go to judgment upon the default of
the defendants, and in such cases there can be no appeal upon
the merits of the cause. When no appeal can be taken, or when
the time for appeal has gone by and none taken, why compel the
parties in the case to abstain from matrimony for the remainder
of the year thereafter? The proportion of divorce decrees
appealed from is infinitely small, and therefore the prohibition
in section 61 discriminates against the many, for the protection
of the few; it is an arbitrary law." He relies upon Pearson _v._
Pearson, 51 _Cal._, 120 (1875), construing sec. 63 of the Civil
Code to the effect that "all marriages contracted without this
state, which would be valid by the laws of the country in which
the same were contracted, are valid in this state."--_San Fran.
Law Journal_ (July 16, 1900), 1.
[538] See the Estate of Wood, 137 _Cal._ (1902), 129 ff., where
Reno marriages are held valid, three justices dissenting.
[539] In Willey _v._ Willey, 22 _Wash._ (Jan. 27, 1900), 115-21.
The courts of Oregon have taken the opposite view, holding such
marriages of residents of Oregon contracted in another state
absolutely void under the statute: McLennan _v._ McLennan, 31
_Ore._ (1897), 480.
[540] Acts of March 2 and 16, 1903, _Stat. and Amend. to the
Codes_, chaps. lxvii, clviii.
[541] It has already been so declared by Judge Rhodes in the
superior court of Santa Clara county.
Expressly or by implication the divorced couple are excepted from
the restraint, and permitted to rewed in Alaska, California,
Colorado, Idaho, Kansas, Montana, New York, Oklahoma, Oregon, South
Dakota, Vermont, and Washington. On the question whether, in the
absence of statutory authority, such remarriage of the divorced
persons comes within the restraint, the decisions of the courts are
conflicting.[542]
[542] Compare Moore _v._ Moore, 8 ABB., _N. C._, 171-73; Colvin
_v._ Colvin, 2 PAIGE, 385-87, denying the right of remarriage in
such cases; with Moore _v._ Hegeman, 92 _N. Y._, 521-29, where
the question is left undecided.
All of the twenty-six states under consideration have prescribed
rules or conditions regarding the residence of the plaintiff in
divorce suits. In nearly every instance a definite term of previous
residence in the state, or in the state and in the county, of the
action is fixed. This term varies from six months to three years,
one year being the prevailing period. In the West the requirements
in this regard are not in general so rigid as in some eastern
and southern states; but during the past two decades encouraging
progress has been made.
The law of New York governing residence has in the preceding
subsection already been presented. A fixed term is not prescribed,
except that in cases of partial divorce, when the marriage was
solemnized outside the state, the persons must have "continued to
be residents" of the state for at least one year, and the plaintiff
must be resident at the time the action is commenced.[543]
Delaware has not fixed a definite period of residence; but no
divorce from the bond of matrimony will be decreed when the cause
assigned therefor in the petition occurred out of the state and
the "petitioner was a non-resident thereof at the time of its
occurrence, unless for the same or like cause such divorce would be
allowed by the laws of the state or country in which it is alleged
to have occurred."[544] Delaware, like Maine and Massachusetts, has
attempted to prevent clandestine divorce through evasion of the
laws. "When any inhabitant ... shall go into any other jurisdiction
to obtain a divorce for any cause occurring here; or for any cause
which would not authorize a divorce by the laws of this state;
a divorce so obtained shall be of no force or effect in this
state."[545] The statute of New Jersey gives the court of chancery
jurisdiction in actions for divorce when either the complainant or
defendant is an inhabitant of the state "at the time of the injury,
desertion, or neglect;" when the marriage took place within the
state, and the complainant is an actual resident at the time the
injury arose, and at the time of exhibiting the bill; when the
adultery occurred within the state and either spouse is a resident
thereof at the commencement of the suit; or when one of the persons,
at the time of filing the bill and for the term of two years during
which the desertion shall have continued, is a resident of the
commonwealth.[546] When the cause is adultery committed outside the
state, three years' previous residence on the part of either the
complainant or the defendant is always required.[547]
[543] STOVER, _Code of Civil Proced._ (1892), II, 1640.
[544] _Rev. Stat. of Del._ (1893), 598; being the act of 1891:
_Laws_, XIX, chap. 243, p. 480.
[545] _Rev. Stat. of Del._ (1893), 598. "In all other cases a
divorce decreed in any other state or country" is valid: _ibid._,
598.
[546] _Gen. Stat. of N. J._ (1896), II, 1273; being act of March
7, 1889: _Pub. Laws_, 48. This law has existed in nearly the same
form since 1820: see act of Feb. 16, 1820: _Laws of the State_
(1821), 667.
[547] _Gen. Stat. of N. J._ (1896), II, 1273; being act of May
11, 1886: _Pub. Laws_, 345.
A term of twelve months' previous residence was established by
Indiana in 1831.[548] This was increased to two years in 1838,
regardless of the place where the alleged cause of divorce
occurred.[549] A period of one year was again adopted in 1849.[550]
Three years later the law was still further relaxed by making
_bona fide_ residence in the county of the action sufficient to
warrant a petition.[551] In 1859 the one-year term was once more
restored,[552] only to yield in 1873 to a _bona fide_ residence
of two years in the state and six months in the county; and this
provision is still in force.[553] The legislation of Michigan shows
similar vicissitudes. The act of 1819 allows an absolute divorce
for adultery when the parties are "inhabitants" of the territory,
or when the marriage was solemnized therein, and the injured person
is an actual resident at the time of the offense and at the time
the complaint is filed.[554] In 1832 a residence of three years was
fixed for the plaintiff in both full and partial divorce;[555] but
in 1838 the term was reduced to two years, and to half that time
in 1844.[556] The period of one year is still sanctioned when the
cause of action occurs within the state. By the careful act of May
26, 1899, no decree of divorce will be granted in any case unless
(1) the plaintiff has resided in the state for one year preceding;
or (2) the marriage sought to be dissolved was solemnized in the
state and the plaintiff has since resided therein to the time of
the petition. Furthermore, in no case will a decree be granted
unless (1) the defendant is domiciled in the state when the petition
is filed; or (2) was so domiciled when the alleged cause for the
action arose; or (3) when he voluntarily appears at the trial, or
is brought in by publication, or has been personally served with
process or notice. On the other hand, when the cause of action
occurs outside the state, a divorce will not be allowed unless the
complainant or the defendant shall have resided in the commonwealth
for two years immediately before the filing of the petition. If the
defendant is not domiciled in the state at the time of commencing
the suit, or when the alleged cause arose, before a decree will be
granted the complainant must prove that the parties have actually
lived and cohabited together as husband and wife within the state,
or that the complainant has there resided in good faith for the two
preceding years.[557]
[548] _Rev. Laws of Ind._ (1831), 213.
[549] _Ibid._ (1838), 243.
[550] _Gen. Laws_ (1849), 62.
[551] _Rev. Stat._ (1852), 234: of "which _bona fide_ residence
the affidavit of the petitioner shall be _prima facie_ evidence."
[552] _Laws of the State_ (1859), 108.
[553] Act of March 10: _Laws_ (1873), 109; same in _Rev. Stat._
(1896), I, sec. 1031.
[554] _Ter. Laws of Mich._, I, 495.
[555] _Ter. Laws of Mich._, III, 931.
[556] _Rev. Stat._ (1838), 337; _Acts_ (1844), 74.
[557] _Pub. Acts_ (1899), 326, 327. When the order for appearance
is served outside the state, the law requires that the fact of
service be proved by affidavit before a justice or notary whose
legal character and signature must be attested by the certificate
of a court of record. See the earlier act of 1895: _Pub. Acts_
(1895), 371; and _cf._ HOWELL, _Gen. Stat._, II, 1624; MILLER,
_Comp. Laws_ (1899), III, 2657.
Since 1785 Pennsylvania has required that the plaintiff in a suit
for absolute divorce must be a citizen of the state and a resident
therein at least one whole year before the action is begun.[558]
The one-year term is prescribed likewise in Ohio, except when the
action is for alimony alone;[559] in Illinois since 1827, unless
the offense or injury complained of was committed in the state, or
while one or both of the persons resided there;[560] in Minnesota
since 1851, except when the suit is on the ground of adultery
committed while the plaintiff was a resident of the state;[561] in
Wisconsin since 1838-39, except when the cause is adultery similarly
committed, or when the marriage was solemnized in the state and
the plaintiff resided there from the time of such marriage to the
time of bringing suit, or when the wife is plaintiff and the husband
has resided in the state for one year preceding the commencement
of the action;[562] in Iowa since 1838, "except when the defendant
is a resident of the state served by personal service;"[563] in
Colorado since 1861, unless the application is made upon "grounds of
adultery or extreme cruelty when the offence was committed within
the state;"[564] in Kansas since 1855;[565] in Utah since 1878;[566]
in Montana since 1865;[567] in Washington since 1854;[568] in Oregon
since 1862;[569] in California since 1891;[570] in North Dakota
since 1899;[571] and in Wyoming since 1901.[572] In Alaska by the
federal law of 1903, the plaintiff must be an inhabitant of the
district for two years before suit is brought; and the same term had
already been prescribed for Hawaii.[573]
[558] _Cf._ the act of June 20: _Laws of Pa._ (1893), 471; also
in PEPPER AND LEWIS, _Digest_ (1896), I, 1638, 1639; and the act
of Sept. 19, 1785: _Laws of the Com. of Pa._ (1803), III, 105.
[559] BATES, _Ann. Stat. of Ohio_ (1897), II, 2805. The law of
1827 requires two years' residence on the part of the plaintiff:
CHASE, _Stat._, III, 1581.
[560] _Cf._ act of June 1, 1827: _Rev. Code of Ill._ (1827), 182;
HURD, _Rev. Stat. of Ill._ (1898), 632: being the same as _ibid._
(1845), 196.
[561] _Cf._ _Rev. Stat. of Minn._ (1851), 274; _Gen. Stat._
(1894), I, 1268, 1269.
[562] The development of the Wisconsin law of residence may
be traced in _Stat. of the Ter._ (1838-39), 140; _Rev. Stat._
(1849), 395; _ibid._ (1858), 623-28 (in which the clause
referring to the wife as plaintiff first appears); _Ann. Stat._
(1889), I, 1368.
[563] The petition for divorce "must state that the plaintiff
has been for the last year a resident of the state, specifying
the township and county in which he or she has resided, and the
length of such residence therein after deducting all absences
from the state; that it has been in good faith and not for the
purpose of obtaining a divorce only"; and "in all cases it must
be alleged that the application is made in good faith and for the
purpose set forth in the petition."--_Ann. Code of Ia._ (1897),
1137; same in _Code_ (1873), 339. See also act of Dec. 29, 1838:
_Laws_ (1838-39), 179, 180, first fixing the period of one year's
previous residence.
[564] "Provided, further, that such suit shall only be brought
in the county in which such plaintiff or defendant resides, or
where such defendant last resided."--MILLS, _Ann. Stat. of Col._
(1897), III, 437, 438; being the act of 1893: _Laws_, 239. _Cf._
the original act in _Laws of Col._ (1861-62), 360, 361, fixing
the one-year term.
[565] _Laws of Kan._ (1897), II, 273; being same as _Gen. Stat._
(1868), 757. _Cf._ original act of 1855: _Stat._ (1855), 311.
In 1859 the term of residence was reduced to six months, but
the one-year period was restored the next year: _Laws of Kan._
(1859), 385; _ibid._ (1860), 108. Now the petitioner must be a
resident of the county of the action.
[566] See the preceding subsection.
[567] _Comp. Codes and Stat. of Mont._ (1895), 482. See _Acts_
(1864-65), 430.
[568] _Ann. Codes and Stat. of Wash._ (1897), II. 1596; _Stat._
(1854), 405-7. The term was reduced to three months in 1864,
but restored to one year in 1866: _Stat._ (1864), 13; _Stat._
(1865-66), 89, 90.
[569] When the marriage was solemnized in the state, it is
sufficient if the plaintiff be an inhabitant thereof at the
commencement of the suit. If not solemnized in the state, both
parties must be inhabitants at the commencement of the suit, and
the plaintiff for one year before (act of 1862). The plaintiff
must be an inhabitant of the state at the commencement of
the suit and for one year before; "which residence shall be
sufficient to give the court jurisdiction, without regard to the
place where the marriage was solemnized, or the cause of suit
arose" (act of 1865): _Codes and Gen. Laws_ (1902), I, 277. By
the act of 1853, in force till 1862, the term of residence was
fixed at six months: _Gen. Laws._ (1852-53), 49-51.
[570] _Stat. and Amend. to Codes of Cal._ (1891), 52. The
plaintiff must be a resident of the state one year and of the
county three months. Between 1851 and 1891 the term was six
months: Act of March 25: _Stat. of Cal._ (1851), 186, 187.
[571] _Acts_ (1899, Feb. 3), 94: The plaintiff must have been a
resident of the state in good faith for twelve months, and be a
citizen of the United States or have declared his intention to
become such citizen. By the earlier law, as at the close of the
territorial period, the term of residence was ninety days: _Rev.
Codes of N. D._ (1895), 614.
[572] _Laws of Wyo._ (1901), 4.
[573] _U. S. Stat. at Large_, XXXIII, 944. The period is two
years in Hawaii: _ibid._, XXXI, 150.
Four states are less stringent in their requirements. In Nebraska,
since 1856, petition will not be granted unless the plaintiff has
resided in the state for six months, except when the marriage was
solemnized in the state and the plaintiff has there dwelt since the
marriage to the time when the suit is commenced.[574] The same term
has been required in Idaho since 1864;[575] while in Nevada, since
1861, the plaintiff must have resided six months in the county where
suit is brought, unless the action is begun "in the county in which
the cause thereof shall have accrued, or in which the defendant
shall reside, or be found, or in which the plaintiff shall reside if
the latter be the county in which the parties last cohabited."[576]
Until 1899, as in the territorial stage, South Dakota required only
ninety days' _bona fide_ residence on the part of the plaintiff. In
that year the term was increased to six months; but in no case will
a divorce be granted without personal service within the state, or,
when the defendant is non-resident, personal service and order of
publication "until the plaintiff shall have a _bona fide_ residence
in the state for one year" next before the granting of a decree.[577]
[574] _Comp. Stat. of Neb._ (1901), 577; _Laws_ (1856), 155.
[575] _Rev. Stat. of Idaho_ (1887), 305; _Laws_ (1867), 69. The
law of residence took its present form in 1867: but the provision
of 1864, _Laws_ (1863-64), 615, 616, is identical with that of
Nevada quoted in the text.
[576] _Comp. Laws of Nev._ (1900), 115. _Cf._ _Laws_ (1861), 96,
97; and _Laws_ (1875), 63.
[577] _Stat. of S. D._ (1899), II, 1029; _Rev. Codes_ (1903),
602. The territorial law of 1883: LEVISSEE, _Ann. Codes of Ter.
of Dak._ (1884), 751, requires a residence of ninety days.
The laws of every state in this group contain some provision
requiring notice to the defendant when personal service cannot
be had. Such notice is given as in equity suits in Illinois and
Nebraska; as in ordinary civil actions in California,[578] Idaho,
Montana, Oregon, Utah, Washington, Wisconsin,[579] and Wyoming; and
in the remaining commonwealths special rules regarding publication,
usually in the newspapers, are in force.[580]
[578] In California and Montana summons and publication in
divorce suits are given under the general provisions for civil
actions: POMEROY, _Codes and Stat.: Civil Proced._ (1901), secs.
410 ff.; _Codes and Stat. of Mont._ (1895), 782, 796, 797. This
is, of course, not inconsistent with Sharon _v._ Sharon (1885),
67 _Cal._, 185, ruling that an action for divorce is a case in
equity under the clause in the constitution conferring appellate
jurisdiction on the supreme court.
[579] The statute of Wisconsin requires the proceedings to be as
in "courts of record" so far as practicable: _Ann. Stat._ (1889),
I, 1362.
[580] In New York, for instance, the order for publication
must direct that the summons be published "in two newspapers,
designated in the order as most likely to give notice to
the defendant, for a specified time, which the judge deems
reasonable, not less than once a week for six successive weeks;"
and unless the judge is satisfied from affidavits presented that
the defendant's residence is unknown, it must also require that
copies of the summons, complaint, and order be mailed to him at a
specified place: BIRDSEYE, _Rev. Stat._ (1896), I, 18. The laws
of Ohio and Kansas are similar: BATES, _Ann. Rev. Stat. of Ohio_
(1897), II, 2805; _Laws of Kan._ (1897), II, 273. By the statute
of Pennsylvania, if the adverse party is not found, the court may
issue an alias subpoena, and trial may be set for a later term.
If a second time personal service cannot be had, notice must be
"published in one or more newspapers printed within or nearest to
the said county for four weeks successively" prior to the first
day of the next term: PEPPER AND LEWIS, _Digest_ (1896), I, 1642.
Colorado has a careful provision. See also _Civil Laws of the
Hawaiian Islands_ (1897), 716-18; and the new law of New Jersey:
_Acts_ (1903), 122, 123.
The miscellaneous provisions regarding divorce and divorce actions
are in character similar to those already mentioned for other
states. In California, Hawaii, Illinois, Michigan, Montana,
Nebraska, New Jersey, New York, North Dakota, Ohio, South Dakota,
and Wyoming the legitimacy of the children of the marriage is
expressly recognized in case of divorce. Trial by jury in the
finding of facts is allowed in Illinois, Nevada, New York,[581]
Pennsylvania, and Wisconsin; while in Washington it is expressly
denied; and in Colorado the guilt or innocence of the defendant must
be determined by the verdict in every case.[582] The statutes of
Kansas, Nebraska, Ohio, Wisconsin, and Wyoming permit either consort
to be a witness in the case; and by those of Illinois, Kansas,
Minnesota, Nevada, Ohio, Oregon, Wisconsin, and Washington the court
may authorize the woman to change her name. She is granted this
privilege in Alaska only when not the person in fault. In several
instances special provision is made for defending the action.
According to the Indiana law, "when a petition for divorce remains
undefended, it shall be the duty of the prosecuting attorney to
appear and resist" the same.[583] In Colorado, when the defendant
fails to appear, the court must appoint an attorney who shall
secure a fair and impartial hearing of the case.[584] By the law
of Oregon the state is constituted a party in such suits, and it
is the duty of the district attorney, "so far as may be necessary
to prevent fraud or collusion," to control the proceedings for the
defense.[585] Washington has a similar law;[586] and in special
cases the prosecuting attorney in Idaho and Michigan is likewise
required to oppose the granting of a decree.[587] Soliciting divorce
business by advertising or otherwise is sometimes prohibited
under severe penalty, such being the case in California, Illinois,
Indiana, Minnesota, Montana, New York, Ohio, and Washington.[588]
Indiana has a unique enactment expressly declaring that a divorce
legally granted in any other state shall have full effect in that
commonwealth.[589] Everywhere due provision is made for alimony,
care of the children, and the adjustment of property rights. There
is great variation in matters of detail; but in general the laws of
the middle and western states relating to these subjects are very
similar to those of New England. For the purpose of the present
chapter further notice may therefore be dispensed with. Only in
Michigan,[590] Ohio, Illinois, and Indiana, it may be mentioned in
conclusion, has any adequate provision been made for the collection
and publication of divorce statistics.
[581] By _Laws_ (1899), 1471, 1472, on application of either
party, when the assigned cause is adultery, a jury must be
called; and in other cases it may be empaneled.
[582] MILLS, _Ann. Stat. of Col._ (1897), III, 438; _Ann. Codes
and Stat. of Wash._ (1897), II, 1600.
[583] _Rev. Stat. of Ind._ (1896), I, sec. 1038. An emergency act
of 1901 makes provision for counties of 100,000 inhabitants; that
is, for Marion county, containing Indianapolis. Where no _bona
fide_ counsel for the defendant is entered in the appearance
docket, the prosecuting attorney is to enter his name therein,
and to resist the petition on behalf of the state. Any attorney,
other than the prosecuting attorney, appearing for the defendant,
if so ordered by the court, must file a written authority
executed by the defendant: _Laws_ (1901), chap. 151, pp. 336,
337. In substance this requirement as regards the prosecuting
attorney is made general for the state by an act of 1903: _Laws_,
393, 394.
[584] MILLS, _Ann. Stat._, III, 438; _Laws_ (1893), 238, 239.
[585] _Codes and Gen. Stat._ (1892), I, 664 (act of Oct. 11,
1862); _Codes and Stat._ (1902), I, 456.
[586] _Ann. Codes and Stat._ (1897), II, 1600.
[587] This is the duty of the district attorney in Idaho, and
of the county attorney in Utah, when the ground of the petition
is the alleged insanity of the defendant: _Gen. Laws of Id._
(1895), 12; _Laws of Utah_ (1903), 39, 40; and of the prosecuting
attorney in Michigan, when there are children under fourteen
years of age whose interests require his intervention: HOWELL,
_Gen. Stat._, III, 3605; MILLER, _Comp. Laws_ (1899), III, 2665.
[588] _Cal. Stat. and Amend. to the Codes_ (1891), 279; _ibid._
(1893), 48; _ibid._ (1900-1901), 444; _Rev. Stat. of Ill._
(1898), 633, 634; _Rev. Stat. of Ind._ (1896), I, sec. 2129;
BATES, _Ann. Rev. Stat. of Ohio_ (1897), II, 3218; _Ann. Codes
and Stat. of Wash._ (1897), II, 1987, 1988; _Gen. Laws of Minn._
(1901), 286. By _Laws of N. Y._ (1902), I, 536, this offense is
made a misdemeanor. _Cf._ _Laws of Montana_ (1903), 146.
[589] _Rev. Stat._ (1896), I, 1049.
[590] Act of Feb. 11, 1897: _Pub. Acts of Mich._, 12; _ibid._
(1899), 69.
CHAPTER XVIII
PROBLEMS OF MARRIAGE AND THE FAMILY
[BIBLIOGRAPHICAL NOTE XVIII.--Materials for a more extended
study of the questions touched upon in this chapter are set
forth in Part IV of the Bibliographical Index. Wright's _Report
on Marriage and Divorce_ is, of course, indispensable. It may
be supplemented from the _Eleventh Census, U. S._, I; the
_Census of Massachusetts_, 1875, 1885, 1895; the _Registration
Reports_ of the New England states, of which the forty-first
for Massachusetts is most important; and from those of Indiana,
Illinois, Michigan, and Ohio. Useful summaries of statistics
may also be found in Secretary Dike's _Reports of the National
Divorce Reform League_, and its successor, the _National League
for the Protection of the Family_ (Montpelier and Boston,
1886-1903). An important statistical monograph is Willcox's
_Divorce Problem_ (2d ed., New York, 1897). This should be read
in connection with his "Study in Vital Statistics," in _Pol.
Science Quarterly_, VIII (New York, 1893); his "Marriage Rate
in Michigan," in _Pub. of Am. Stat. Association_, IV (Boston,
1895); Crum's "Marriage Rate in Massachusetts," in the same
volume; and Kuczynski's article in _Quart. Jour. of Economics_,
XVI (Boston, 1902). See also Dike, "Statistics of Marriage and
Divorce," in _Pol. Science Quarterly_, IV (New York, 1889), a
study of the government report; _idem_, "Facts as to Divorce in
New England," in _Christ and Modern Thought_ (Boston, 1881);
Wells, _Divorce in Mass._, extract from the _41st Registration
Report_ (Boston, 1882); Abbott, "Vital Statistics," in _28th
Rep. Mass. State Board of Health_ (Boston, 1897); Wright,
_Practical Sociology_ (New York and London, 1899); Mayo-Smith,
_Statistics and Sociology_ (New York and London, 1895); Loomis,
"Divorce Legislation in Conn.," in _New Englander_, XXV (New
Haven, 1866); and Allen, "Divorces in New England," in _North
Am. Rev._, CXXX (New York, 1880). Important foreign statistical
works are Bertillon, "Note pour l'étude stat. de divorce," in
_Annales de démographie internat._, IV (Paris, 1880); _idem_,
_Étude démographique du divorce_ (Paris, 1883); _idem_, "Du
sort des divorcés," in _Jour. de la soc. de statistique_
(Paris, 1884); Oettingen, _Die Moralstatistik_ (2d ed.,
Erlangen, 1874); Rubin and Westergaard, _Statistik der Ehen_
(Jena, 1890); Bertheau, _Lois de la population_ (Paris, 1892);
Molinari, "Decline of the French Population," in _Jour. of
Royal Stat. Soc._, L (London, 1887); Ogle, "Marriage-Rates and
Marriage-Ages," _ibid._, LIII (London, 1890); Farr, "Influence
of Marriage on the Mortality of the French People," in _Trans.
Nat. Assoc. for Promotion of Soc. Science_, LVIII (London,
1859); _idem_, _Vital Statistics_, Parts I, II (London,
1885); Newsholme, _Vital Statistics_ (3d ed., London, 1892);
Cauderlier, _Les lois de population_ (Brussels, 1900); Lindner,
_Die unehelichen Geburten als Sozialphänomen_ (Naumburg, 1899);
_Statistik der Ehescheidungen in der Stadt Berlin, 1885-94_
(Berlin, n. d.); the parliamentary _Return of the Number of
Divorces in Foreign Countries, Misc._, No. 4 (London, 1895),
Part II, being for British Colonies; and _Reports of the Laws of
Marriage and Divorce_, Parts I, II (London, 1894).
On the divorce problem see _An Essay on Marriage; or, the
Lawfulness of Divorce_ (Philadelphia, 1788), presenting the
principal arguments in its favor; Westbrook, _Marriage and
Divorce_ (Philadelphia, 1883); _idem_, _The Clerical Combination
to Influence Civil Legislation on Marriage and Divorce_
(Philadelphia, 1887); Fisher, _The Causes of the Increase
of Divorce_ (Boston, 1883); Richard, _Marriage and Divorce_
(London, 1888); Robinson, "The Diagnostics of Divorce," in
_Jour. of Soc. Science_, No. 14 (Boston and New York, 1881);
Janes, "Divorce: Sociologically Considered," in _New Englander
and Yale Review_, LIV (New Haven, 1891); Phillips, "The Divorce
Question," in _International Review_, XI (New York, 1881);
Savage, "Matrimony and the State," in _Forum_, X (New York,
1890); Adler, "The Ethics of Divorce," in _Ethical Record_, II,
III (Philadelphia, 1889-90); Wright, "Marriage and Divorce,"
in _Christian Register_, LXX, 655-58 (Boston, 1891); Lecky,
_Democracy and Liberty_, I, chap. vii (New York and London,
1896); and Bryce, "Marriage and Divorce," in his _Studies in
Hist. and Jur._ (New York and London, 1901). The following are
very conservative: David Hume, "Of Polygamy and Divorces," in
his _Essays_, I (London, 1875); Little, "Marriage and Divorce:
the Doctrine of the Church of England," in _Contemporary
Review_, LXVIII (London, 1895); Hurd, "Scriptural Ground of
Divorce," in the _New Englander and Yale Review_, XLV (New
Haven, 1886); Phelps, "Divorce in the United States," in
_Forum_, VIII (New York, 1889); Caverno, _Treatise on Divorce_
(Madison, 1899); Gladstone, symposium with Bradley and Dolph on
"The Question of Divorce," in _North Am. Review_, CXLIX (New
York, 1889); Greeley, "Marriage and Divorce: a Discussion with
Robert Dale Owen," in _Recollections of a Busy Life_, 571 ff.
(New York, 1869); _idem_, _Love, Marriage, and Divorce, and the
Sovereignty of the Individual_ (New York, 1853), a discussion
with James and Andrews; Convers, _Marriage and Divorce_
(Philadelphia, 1889), presenting the Catholic view; Dike, "Some
Aspects of the Divorce Question," in _Princeton Review_, N.
S., XIII (New York, 1884); and Woolsey, _Divorce and Divorce
Legislation_ (2d ed., New York, 1882).
In Italy divorce is favored by Gioja, _Teoria civile e penale
del divorzio_ (Milan, 1803); Mazzoleni, _La famiglia nei
rapporti coll individuo e colla società_ (Milan, 1870); Bianchi,
_Il divorzio_ (Pisa, 1879); Bernardo, _Il divorzio nella teoria
e nella pratica_ (Palermo, 1875); Marescalchi, _Il divorzio e
la instituzione sua in Italia_ (Rome, 1889); and opposed by
Giudici, _Memoria sul divorzio_ (Milan, 1798); Rosmini, _Des
lois civiles concernant le mariage des chrétiens_ (trans.,
Paris, 1853); Zamperini, _Il divorzio considerato nella teoria
e nella pratica di D. di Bernardo_ (Verona, 1876); and Gabba,
"The Introduction of Divorce in Italy," in _Am. Church Review_,
XXXIII (New York, 1881). In France the rise of a sentiment
favoring divorce may be traced in _Cri d'une honnête femme qui
reclame le divorce_ (London, 1770); _Contrat conjugal_ (Paris,
1781; Neuchatel, 1783); Bouchotte, _Observations sur le divorce_
(Paris, 1790); Hennet, _Du divorce_ (Paris, 1792); Tissot, _Le
mariage, la séparation, et le divorce_ (Paris, 1868), giving an
account of the principal French and Italian writers; Naquet, _Le
divorce_ (Paris, 1877); Bertillon, in the works above cited;
Cavilly, _La séparation de corps et le divorce_ (Paris, 1882);
Fiaux, _La femme, le mariage, et le divorce_ (Paris, 1880); and
Dumas, _La question du divorce_ (Paris, 1879; 5th ed., 1880).
Divorce is opposed by Madame Necker, _Réflexions sur le divorce_
(Paris, 1792; or Lausanne, 1794); Bonald, _Du divorce_ (Paris,
1801); Malleville, _Du divorce_ (Paris, 1801); Chrestien,
_Dissertation historique_ (Paris, 1804); Hennequin, _Du divorce_
(Paris, 1832); Ozanam, "Du divorce," in his _Mélanges_, I
(Paris, 1859); Daniel, _Le mariage chrétien et le Code Napoléon_
(Paris, 1870); Durrieux, _Du divorce_ (Paris, 1881); Vidieu,
_Famille et divorce_ (Paris, 1879). This book was answered by
Dumas in the work just cited; and he in turn was replied to by
Féval, _Pas de divorce_ (11th ed., Paris, 1880); and Hornstein,
_Le divorce_ (Paris, 1880). Kellen, _Was ist die Frau?_
(Leipzig, 1892) gives an account, with extracts, of Dumas's
utterances on social questions.
Problems of the family are discussed by Allen, "The New England
Family," _New Englander_, XLI (New Haven, 1882); Dike, _Perils
to the Family_ (Auburndale, 1887); _idem_, _The Family in the
History of Christianity_ (New York, 1886); _idem_, "Problems
of the Family," in _Century_, XXXIX (New York, 1890); _idem_,
"The Religious Problem of the Country Town," in _Andover
Review_, II, III, IV (Boston, 1884-85); Mathews, "Christian
Sociology: the Family," in _Amer. Jour. of Sociology_, I
(Chicago, 1896); Blaikie, _The Family: Its Scriptural Ideal and
its Modern Assailants_ (London, 1889); Mulford, _The Nation_,
chap. xv (New York, 1871); Bushnell, "The Organic Unity of
the Family," in his _Christian Nurture_ (New York, 1861);
Potter, "The Message of Christ to the Family," in his _Message
of Christ to Manhood_ (Boston, 1899); Peabody, "Teachings of
Jesus Concerning the Family," in his _Jesus Christ and the
Social Question_ (New York, 1900); Buckham, "The Relation of
the Family to the State," in _International Review_, XIII (New
York, 1882); Pearson, "Decline of the Family," in his _National
Life and Character_ (London, 1893); answered by Muirhead, "Is
the Family Declining?" in _Internat. Jour. of Ethics_, VII
(Philadelphia, 1896); Commons, "The Family," chap. 10 of his
"Sociological View of Sovereignty," in _Am. Jour. of Sociology_,
V (Chicago, 1900); Stewart, _Disintegration of the Families
of the Workingmen_ (Chicago, 1893); Salter, _The Future of
the Family_ (Chicago, 1885); Devas, _Studies of Family Life_
(London and New York, 1886); Henderson, _Social Elements_ (New
York, 1898); Small and Vincent, _Study of Society_ (New York,
Cincinnati, and Chicago, 1894); Ward, _Dynamic Sociology_, I,
chap, vii (New York, 1883); Thwing, _The Family_ (Boston, 1887);
Planta, _Reconstruction der Familie_ (Chur, 1886); Hermann, _Die
Familie vom Standpunkte der Gesammtwirthschaft_ (Berlin, 1889);
Thiersch, _Ueber Christliches Familienleben_ (8th ed., Augsburg,
1889); Naumann, _Christenthum und die Familie_ (Berlin, 1892);
Riehl, _Die Familie_ (11th ed., Stuttgart, 1897); Gasparin,
_Die Familie_ (Gütersloh, 1870); Koenigswarter, _Hist. l'org.
de la famille en France_ (Paris, 1851); Godelle, _Des principes
fond. de la famille_ (Metz, 1869); Grevin, _L'égalité dans la
famille_ (Douai, 1876); Bobbio, _Sulle origini e sul fond. della
famiglia_ (Turin, 1891); Assirelli, _La famiglia e la società_
(Milan, 1887); Janet, _La famille_ (10th ed., Paris, 1877); Le
Play, _L'organisation de la famille_ (4th ed., Tours and Paris,
1895); Durkheim, _Int. à la sociologie de la famille_ (Bordeaux,
1888); Bonjean, _Enfants révoltés et parents coupables_
(Paris, 1895); Baudrillart, _La famille et l'éducation en
France_ (Paris, 1874); Morillot, _Condition des enfants nés
hors mariage_ (Paris, 1865); Lallemand, _Hist. des enfants
abandonnés_ (Paris, 1885); _idem_, _La question des enfants
abandonnés_ (Paris, 1885); Milhaud, _Protection des enfants sans
famille_ (Paris, 1896); Gaume, _Hist. de la société domestique_
(Paris, 1844), presenting the strong Catholic view; Pelletan,
_La famille: la mère_ (Paris, n. d.). For Germany and England
see Biographical Note XI.
Marriage problems are discussed by Giles, _Treatise on Marriage_
(London, 1771); Ryan, _Philosophy of Marriage_ (3d ed., London,
1839); Amat, _Treatise on Matrimony_ (San Francisco, 1864);
Watkins, _Holy Matrimony_ (London, 1895); Potwin, "Should
Marriage be Indissoluble?" in _New Englander and Yale Review_,
LVI (New Haven, 1892); Malcome, _The Christian Rule of Marriage_
(Philadelphia, 1870); Pomeroy, _Ethics of Marriage_ (New York,
1889); Gray, _Husband and Wife_ (2d ed., Boston, 1886); Lea,
_Christian Marriage_ (London, 1881); Harte, _Laws and Customs
of Marriage_ (London, 1870); Quilter, _Is Marriage a Failure?_
(Chicago, 1889); Colfavru, _Du mariage ... en Angleterre et aux
États-Unis_ (Paris, 1868); Carlier, _Le mariage aux États-Unis_
(Paris, 1860); Cook, "Marriage Celebration in the U.S.," and
"Reform of the Marriage Celebration," both in _Atlantic_, LXI
(Boston, 1888); Snyder, _The Geography of Marriage_ (2d ed.,
New York and London, 1889); Chavassé, _Traité de l'excellence
du mariage_ (Paris, 1685); Gasparin, _Le mariage au point
de vue chrétien_ (2d ed., Paris, 1844); Picot, _Le mariage_
(Paris, 1849); Cadet, _Le mariage en France_ (Paris, 1870);
Acollas, _Trois leçons ... du mariage_ (Geneva and Berne,
1871); _idem_, _Le mariage_ (Paris, 1880); Sincholle, _Le
mariage civil et le mariage religieux_ (Poitiers, 1876);
Legrand, _Le mariage et les mœurs en France_ (Paris, 1879);
Hayem, _Le mariage_ (Paris, 1872); Schoelcher, _La famille, la
propriété, et le christianisme_ (Paris, 1875); Hippel, _Ueber
die Ehe_ (4th ed., Frankfort and Leipzig, 1794); Volkmar,
_Philosophie der Ehe_ (Halle, 1794); Krug, _Philosophie der
Ehe_ (Reutlingen, 1801); Jörg and Tzschirner, _Die Ehe aus dem
Gesichtspunkte der Natur, der Moral, und der Kirche_ (Leipzig,
1819); Stäudlin, _Geschichte der Vorstellungen und Lehren von
der Ehe_ (Göttingen, 1826); Liebetrut, _Die Ehe nach ihrer Idee
und nach ihrer geschichtlichen Entwicklung_ (Berlin, 1834);
Marr, _Der Mensch und die Ehe_ (Leipzig, 1848); Hoffmann,
_Die christliche Ehe_ (Berlin, 1860); Glock, _Die christliche
Ehe und ihre modernen Gegner_ (Karlsruhe and Leipzig, 1881).
Socialistic writers on the subject are Robert Owen, _Marriages
of the Priesthood of the Old Immoral World_ (4th ed., Leeds,
1840); Robert Dale Owen, "Marriage and Placement," in _Free
Inquirer_, May 28 (New York, 1831); Pearson, _Ethic of Free
Thought_ (London, 1888); Besant, _Marriage; As It Was, As It Is,
and As It Should Be_; Gronlund, _The Co-operative Commonwealth_
(3d ed., London, 1891); Morris and Bax, _Socialism_ (London and
New York, 1893); Carpenter, _Love's Coming of Age_; Stürmer,
_Moderner Eheschacher_ (Leipzig, 1894); Proudhon, _Amour et
mariage_ (Brussels and Leipzig, n. d.); and Bebel, _Die Frau
und der Sozialismus_ (31st ed., Stuttgart, 1900), whose book is
discussed by Oettingen, _Zur Theorie und Praxis des Heiratens_
(Leipzig, n. d.). See also Oettingen's _Obligatorische und
fakultative Civilehe nach den Ergebnissen der Moralstatistik_
(Leipzig, 1881); Coulon, _De la réforme du mariage_ (Paris,
1900); Kuhlenbeck, _Reform der Ehe_ (Leipzig, 1891); Ewart,
_Die Emancipation in der Ehe_ (Hamburg and Leipzig, 1895);
Vortmann, _Die Reform der Ehe_ (Zürich, 1894); Lacombe, _Le
mariage libre_ (Paris, 1867); Löwenherz, _Prostitution oder
Production, Eigentum oder Ehe_ (Neuwied, n. d.); especially the
able and radical works of Caird, _The Morality of Marriage_
(London, 1897); Stetson, _Women and Economics_ (Boston, 1900);
and Schreiner, "The Woman Question," in _Cosmopolitan_, XXVIII
(Irvington, 1899); _idem_, "The Woman's Movement of Our Day," in
_Harper's Bazar_, XXXVI (New York, 1902). Swedenborg's system is
set forth in his _Conjugal Love and its Chaste Delights_ (new
ed., London, 1862); it is summarized by Hayden, _Ten Chapters on
Marriage_ (2d ed., Boston, 1863); and expounded by Mann, _Five
Sermons on Marriage_ (New York, 1882).
On questions of heredity and selection consult Nisbet, _Marriage
and Heredity_ (London, 1890); Laurent, _Mariages consanguins
et dégénérescences_ (Paris, 1895); Féré, _La famille
névropathique_ (Paris, 1894); Strahan, _Marriage and Disease_
(London, 1892); Reibmayr, _Die Ehe Tuberculoser_ (Leipzig and
Vienna, 1894); Fournier, _Syphilis und Ehe_ (Berlin, 1881);
Stanley, "Artificial Selection and the Marriage Problem," in
_Monist_, II (Chicago, 1891); _idem_, "Our Civilization and the
Marriage Problem," in _Arena_, II (Boston, 1890); criticised
by Wallace, "Human Selection," in _Fortnightly Review_, XLVIII
(London, 1890); Wertheimer, "Homiculture," in _Nineteenth
Century_, XXIV (London, 1898); and especially Wood, _Some
Controlling Ideals of the Family Life of the Future_ (New York,
1902).
Sex problems are treated by Clarke, _Sex in Education_ (Boston,
1873), who is criticised in the works of Brackett, Howe,
and Greene; Geddes, _Evolution of Sex and Sex in Education_
(1899-1900); Maudsley, _Sex in Mind and Education_ (New York,
1884); Ames, _Sex in Industry_ (Boston, 1875); Lyttelton,
_Training of the Young in the Laws of Sex_ (London and New
York, 1900); Blackwell, _The Human Element in Sex_ (new ed.,
London, 1894); Brown, _Gunethics_ (New York and London, 1887);
Trall, _Sexual Physiology and Hygiene_ (Glasgow and London,
1897); Gardner, _The Conjugal Relations_ (Glasgow and London,
1898); Walker, _Intermarriage_ (Birmingham, 1897); Heinzen,
_The Rights of Women and the Sexual Relations_ (Chicago, 1898);
Tait, _Magdalenism_ (2d ed., Edinburgh, 1842); Lecour, _La
prostitution à Paris et à Londres, 1789-1877_ (Paris, 1882);
Guyot, _La prostitution_ (Paris, 1882); Parents-Duchatelet, _De
la prostitution dans la ville de Paris_ (Paris, 1837); Dühren,
_Das Geschlechtsleben in England_ (Charlottenburg and Berlin,
1901-3); Klebs, _Verhältniss des männ. und weib. Geschlechts in
der Natur_ (Jena, 1894); Herman, _Sexualismus und Aetiologie_
(Leipzig, 1899); Lindwurm, _Geschlechtsliebe_ (Leipzig, 1879);
Debay, _Philosophie des Ehelebens_ (Berlin, 1895); Mantegazza,
_Hygiene der Liebe_ (3d ed., n. p., n. d.); Nemmersdorf, _Der
Kampf der Geschlechter_ (Leipzig, 1891); Daalen, _Die Ehe und
die geschlecht. Stellung der Frau_ (Berlin, 1896); Gardener, "A
Battle for Sound Morality, or the Hist. of Recent Age-of-Consent
Legislation in the U. S.," in _Arena_, XIII, XIV (Boston,
1895); Flower, "Wellsprings of Immorality," _ibid._, XI, XII
(Boston, 1894-95); _idem_, "Social Conditions as Feeders of
Immorality," _ibid._, XII (Boston, 1895); _idem_, "Prostitution
within the Marriage Bond," _ibid._, XIII (Boston, 1895);
Pearson, "Socialism and Sex," in his _Ethic of Free Thought_
(London, 1888). Early German works of interest are _Der rechte
Gebrauch und Missbrauch des Ehe-Bettes_ (Leipzig, 1734); being
a translation of Defoe's _Use and Abuse of the Marriage Bed_
(London, 1727); Hencke, _Volles entdecktes Geheimniss der Natur_
(Braunschweig, 1786); Josephi, _Ueber die Ehe und physische
Erziehung_ (Göttingen, 1788); Heydenreich, _Mann und Weib: ein
Beytrag zur Philosophie über die Geschlechter_ (Leipzig, 1798);
Butte, _Die Biotomie des Menschen_ (Bonn, 1829). See also the
works of Stetson, Caird, Bebel, and Schreiner above mentioned.
In the text an account is given of the early literature of the
movement for woman's emancipation in its relation to marriage.
For further study may be consulted Stanton, Anthony, and Gage,
_History of Woman Suffrage_ (New York and Rochester, 1881-87);
Fawcett, Hirsch, _et al._, in Theodore Stanton's _Woman Question
in Europe_ (New York, London, and Paris, 1884); Ostrogorski,
_Rights of Women_ (London, 1893); Johnson, _Woman and the
Republic_ (New York, 1897), strongly anti-suffrage; Legouvé,
_Hist. morale des femmes_ (8th ed., Paris, n. d.); Cohn, _Die
deutsche Frauenbewegung_ (Berlin, 1896), containing a select
bibliography; Duboc, _Fünfzig Jahre Frauenfrage in Deutschland_;
Sybel, _Ueber die Emancipation der Frauen_ (Bonn, 1870);
Richter, _Das Recht der Frauen auf Arbeit_ (2d ed., Vienna,
1869); Büchner, _Ueber weibliche Berufsarten_ (Darmstadt, 1872);
Morgenstern, _Frauenarbeit in Deutschland_ (Berlin, 1893);
Hertzberg, _Der Beruf der Frau_ (Leipzig, 1892); Jastrow, _Das
Recht der Frau_ (Berlin, 1897); Bridel, _Le droit des femmes_
(Paris, 1893); Günther (R.), _Weib und Sittlichkeit_ (Berlin,
1898); Günther (C.), _Das Recht der Frau auf Arbeit_ (Berlin,
1899); Mont, _Das Weib_ (2d ed., Leipzig, 1880); Gamble,
_Evolution of Woman_ (New York, 1894); Bücher, _Die Frauenfrage
in dem Mittelalter_ (Tübingen, 1882); and Mary Roberts Smith's
able study of the "Statistics of College and Non-College Women,"
in _Pubs. of Am. Stat. Assoc._, VII (Boston, 1901). For further
material see Bibliographical Notes IX, X, XI.]
I. THE FUNCTION OF LEGISLATION
In the United States, not less clearly than elsewhere in countries
of western civilization, marriage and the family are emerging
as purely social institutions. Liberated in large measure from
the cloud of mediæval tradition, their problems are seen to be
identical in kind with those which have everywhere concerned men
and women from the infancy of the human race. Accordingly, the
extension of the sphere of secular legislation practically to the
entire province of these institutions is a phenomenon of surpassing
interest. Consciously or unconsciously, it is a recognition of the
fact that matrimonial forms and family types are the products of
human experience, of human habits, and are therefore to be dealt
with by society according to human needs. In this regard the
Reformation marks the beginning of a social revolution. From the
days of Luther, however concealed in theological garb or forced
under theological sanctions, however opposed by reactionary dogma,
public opinion has more and more decidedly recognized the right of
the temporal lawmaker in this field. In the seventeenth century
the New England Puritan gave the state, in its assemblies and in
its courts, complete jurisdiction in questions of marriage and
divorce, to the entire exclusion of the ecclesiastical authority.
Even the Council of Trent, by adjusting the dogma regarding the
minister of the sacrament, had already left to Catholic states the
way open for the civil regulation of matrimony--a way, as already
seen, on which France did not hesitate to enter.[591] Later the
French Revolution wrested from the church judicial and legislative
authority in matrimonial law and administration, and placed it in
the hands of the state. In 1792, by a wise and tolerant enactment,
civil marriage and civil registration were established; but at the
same time the revolt against the old ecclesiastical régime led to
the sanction of free divorce. Absolute dissolution of wedlock was
then authorized at the mutual desire of both husband and wife, for
incompatibility of temper on the petition of either spouse, and for
seven other specified causes.[592] The natural result was a vast
number of decrees.[593] Accordingly, in 1803 the Code Napoléon,
while retaining civil marriage, adopted a more conservative policy
regarding divorce. Incompatibility was no longer recognized; mutual
consent was admitted under limitations; and the whole number of
specified causes was reduced to five. The divorce law of 1803 was
abrogated in 1816, and only restored in its essential features
in 1884; but the liberal policy of France, as expressed in the
Code Napoléon, has undoubtedly had a powerful influence in the
extension of civil marriage and divorce throughout Europe, where,
as in America, the modern statute-maker has recovered and passed
beyond the point gained by the Roman imperial constitutions between
Augustus and Justinian.
[591] See chap, viii, sec. i; and consult GLASSON, _Le mar. civil
et le divorce_, 210 ff., 232-51.
[592] On the revolutionary legislation regarding marriage and
divorce (1792-1816) see NAQUET, _Le divorce_ (Paris, 1877),
37-56, 153-353, containing extracts from the debates, text of the
laws, reports, and other documents; _Archives parlementaires_,
XXVI, 166-86, giving the report on the proposed civil marriage
law; WRIGHT, _Report_, 1004-6, presenting summaries of the laws;
CHAMPION, "La revolution et la réforme de l'état civil," _La
révolution française_, June 14, 1887; COLFAVRU, "La question
du divorce devant les législateurs de la révolution," _ibid._,
March 14, 1884; KOENIGSWARTER, _Histoire de l'organisation de
la famille en France_, 268 ff.; GLASSON, _Le mar. civil et le
divorce_, 252-75; LEGRAND, _Le mariage et les mœurs en France_,
196-99; DURRIEUX, _Du divorce_, 99 ff.; FÉVAL, _Pas de divorce_,
74 ff.; FIAUX, _La femme, le mariage, et le divorce_, 25 ff.;
VRAYE AND GODE, _Le divorce et la séparation du corps_, I,
7-26; BERTILLON, _Étude démographique du divorce_, 89 ff.;
and in general LASAULX, _Uebereinstimmung der französischen
Ehetrennungsgesetze mit Gotteswort_ (Koblenz and Hadamar, 1816).
A powerful influence on revolutionary opinion must have been
exerted by the remarkable _Contrat conjugal_, published in
1781, again in 1783, and in German translation in 1784, which
advocated civil marriage and free divorce, while attacking
the ecclesiastical system of impediments and dispensations.
The revolutionary ideas regarding divorce are also vigorously
presented by HENNET, _Du divorce_ (3d ed., Paris, 1792); and by
BOUCHOTTE, _Observations sur le divorce_ (Paris, 1790). On the
other hand, the divorce law of 1792 is criticised and divorce
opposed by MADAME NECKER, _Réflexions sur le divorce_ (Paris,
1792; Lausanne, 1794); as in _Du divorce_ (Paris, 1801), 1 ff.,
by BONALD, who opposed the law of 1803 and secured its repeal in
1816. See PÈRE DANIEL'S _Le mariage chrétien et le Code Napoléon_
(Paris, 1870); and for an examination of the literature of the
period, TISSOT, _Le mariage, la séparation, et le divorce_, 174
ff., 180 ff., 196 ff., 211 ff., 222 ff.
[593] In Paris alone during the first twenty-seven months after
the passage of the act 5,994 divorces were granted; while in
1797 the divorce decrees in that city actually outnumbered
the marriages: GLASSON, _Le mar. civil et le divorce_, 261,
262. Accordingly, in 1798, the law was amended so as to make
divorce for "incompatibility allowable only six months after
final failure of attempts at reconciliation;" and this law also
required all municipal authorities to proceed, and all teachers
of public and private schools to take their pupils, "to the usual
meeting places of the community every ten years in person and in
state, there to make stern proclamation of the parties divorced
during the previous decade, with the view of thus checking
divorces."--WRIGHT, _Report_, 1005; NAQUET, _Le divorce_,
212-37, giving documents; BRUN, "Divorce Made Easy," _North Am.
Rev._, CLVII (July, 1893), 12, 13; citing DUVAL, _Souvenirs
thermidoriens_, I, 60, 61. See also the _Rapport_ (27 thermidor,
an. V) of Portalis, who was the chief advocate of the amendment.
In 1800, it is alleged, there were about 4,000 marriages and 700
divorces in Paris. To what extent the relative decrease was due
to the change in the law can only be conjectured.
The right of society to deal freely with the whole province of
marriage, divorce, and the family may be conceded. To determine the
proper character and sphere of legislation is a very different
matter. What is the quality of the existing laws under the
interpretation given to them by the courts? Are they adequate to
secure proper social control? What is the legitimate aim, and what
are the needful limits of future legislation? Should the laws be
uniform for the fifty-three states and territories; and, if so, how
is uniformity to be attained? These are practical questions with
whose solution it is high time that society should more earnestly
concern itself.
_a_) _The statutes and the common-law marriage._--The defects in
the matrimonial laws of the United States are many and grave; but
perhaps the chief obstacle in the way of securing a proper social
control is the general recognition of the validity of the so-called
"common-law marriage." Almost everywhere the public celebration of
wedlock is intended by the statute; and in nearly all the states
a license or certificate is required before the solemnization
may take place. Yet, according to the prevailing doctrine, as
expressed in judicial decisions or in the statutes themselves, these
provisions are interpreted as merely "directory," not "mandatory;"
and marriage contracts made in total disregard of them, by words
of mutual present consent, are sustained as valid, although the
prescribed penalties may be enforced for violation of the written
law. In short, the vicious mediæval distinction between validity and
legality is retained as an element of common matrimonial law in the
United States.[594]
[594] On this doctrine, with the leading cases, see KENT,
_Commentaries_ (14th ed., Boston, 1896), II, secs. 87 ff.,
pp. 119 ff.; REEVE, _The Law of Husband and Wife_ ("Domestic
Relations"), 250-58; GREENLEAF, _Law of Evidence_ (16th ed.,
Boston, 1899), II, secs. 460-64, pp. 441-47; and especially
BISHOP, _Mar., Div., and Sep._, I, secs. 409 ff., pp. 176 ff.
The doctrine that an informal marriage _per verba de praesenti_
is valid unless expressly declared void by "words of nullity" in
the statute is not an invention of the American courts. It is the
doctrine maintained by the English judges previous to the decision
in the case of the Queen _v._ Millis in 1844; and from the evidence
already presented[595] it seems almost certain, if indeed it be
not demonstrated, that it was the accepted doctrine in the English
colonies. According to an able writer, the colonial statutory
"system" entirely superseded the common law; and this system has
been "destroyed" by a revolution, effected through the decisions
of the American courts, "which has introduced into our law much
of the insecurity, the irreverence, the license, of the Middle
Ages," our common law today being "the canon law that existed prior
to the Council of Trent."[596] No doubt our common-law marriage
is thoroughly bad, involving social evils of the most dangerous
character; and no doubt the colonial legislative system was a
remarkable advance upon anything which had elsewhere appeared.
But the common-law marriage was not introduced by the American
judges; nor is it historically correct to say that in the English
colonies it had been entirely supplanted by legislation, however
admirable in its intent and quality that legislation may have been.
For the colonial period, as elsewhere shown, the relation of the
statutes governing marriage to the common law can only partially
be determined from the court records. In the southern colonies the
judicial history of the subject is almost a complete blank.[597]
Other evidence, however, is available. Only during the thirty-five
years between 1661 and 1696 does any statute of Virginia expressly
declare a marriage void if not contracted according to its
provisions. The new law of 1696, enacted in place of the statute
of 1661/2, which was then repealed, declares that "many great and
grievous mischeifes ... dayly doe arise by clandestine and secret
marriages to the utter ruin of many heirs and heiresses;" and yet it
is significant that the words of nullity contained in the earlier
act are omitted. Indeed, by the terms of this law the validity of
an irregular marriage thereafter contracted by a female between the
ages of twelve and sixteen is clearly implied, although she is to be
severely punished.[598] Dissenters had refused to marry according to
the statute which they regarded as oppressive; and their resistance,
perhaps with a feeling that the act of 1661/2 was itself invalid
as being in conflict with the English common law, may have led to
the omission of the words of nullity in all subsequent statutes of
Virginia. After 1696 irregular marriages were probably regarded as
valid, as they certainly were previous to 1661/2; for an act of
1642/3, while prescribing severe penalties for the secret marriage
of indented servants, shows beyond question that such a contract, or
one between a freeman and an indented maid servant, is looked upon
as binding.[599] The facts are much the same for the other southern
colonies. After 1692 the invalidating clause disappears from the
statutes of Maryland. Only between 1766 and 1778, in North Carolina,
is a marriage contracted without previous license expressly declared
to be null and void; and it is enlightening that even during this
short period of twelve years the penalty of invalidity is not
extended to illegal celebration. It was mainly a device of the
lawmaker to secure the governor in his revenue from the license
fees. The South Carolina act of 1706 merely prescribes penalties
for its violation; and, besides, its provisions relating to the
celebration were entirely disregarded in the western country, where
the various religious sects made use of civil forms or practiced
their own peculiar rites. In both the Carolinas as well as in
Georgia, since marriages illegally celebrated before unauthorized
laymen or ministers seem to have been valid, there is little reason
to doubt that clandestine and other informal contracts by present
consent of the parties were likewise good; but regarding this point
we have no positive information.[600]
[595] See chaps. xii-xv, inclusive.
[596] COOK, "The Marriage Celebration in the United States,"
_Atlantic_, LXI, 521. "But in the early part of this century
there arose in the courts a discussion regarding the nature of
our common law, and the relation of that law to our statute
law in governing the celebration of marriage--a discussion
which since then has constantly increased, and has gradually
brought about a revolution unparalleled in the history of our
subject."--_Ibid._
[597] Chap. xv, sec. ii; chap. xiii, sec. iv.
[598] Chap. xiii, sec. i.
[599] HENING, _Statutes_, I, 252, 253. See chap. xiii, sec. i.
[600] For these colonies see chap. xiii, secs, iii, iv.
The history of marriage in the middle and the New England colonies
leads us to a similar result. From the facts brought to light
in the Lauderdale Peerage case, backed by the testimony of Rev.
John Rodgers in 1773, it is almost certainly established that the
common-law marriage was valid in New York province, and that for
eighty-four years preceding the Revolution no other law relating
to the subject was in force.[601] In New England the formalities
prescribed by the statutes were doubtless usually observed. Yet
there were many clandestine and other irregular marriages, and in
some instances we know that these were treated as valid.[602] Such
was the case in the Plymouth jurisdiction, where "self-marriage"
was punished only by a fine. In Massachusetts similar cases of
"hand-fasting" and "self-gifta" appear. In one case, that of
Governor Bellingham in 1641, the contract was not declared void by
the court, although the grand jury had presented his excellency for
his offense. Fifteen years later Joseph Hills, "being presented
by the grand jury for marrying of himself contrary to the law of
the colony," confessed his fault and was merely "admonished by the
court."[603] Moreover, at no time during the colonial and provincial
periods did the statutes of Massachusetts expressly declare
marriages void for disregard of the celebration or other formalities
prescribed;[604] and the same is true of the daughter-colony of
Connecticut. By the Rhode Island acts of 1647 and 1665 the issue
of a union not formed by the "due and orderly course of law" is
pronounced illegitimate; but it is very suggestive that the words of
nullity do not appear in any of the later statutes of that province.
Occasionally in the colonies statutes were enacted to validate
irregular marriages previously contracted. Such were the acts of
Rhode Island, 1698; of North Carolina, 1766; and of Virginia,
1780. But it would clearly be rash to infer that the marriages
concerned were in fact void without such special intervention.
Notoriously this is but a speedy and simple way of quieting doubt
as to the status of the children or their rights of property and
inheritance. Whether a court would nullify the contracts in question
is a different matter. On the whole, the evidence seems clearly
to show that the colonial statutes sustained the same relation to
the English common law as did the constitutions of the English
church requiring the solemnization of wedlock before a clergyman.
The colonial statute, like the ecclesiastical constitution, might
determine the legal forms which must be observed to escape a
penalty; but the common-law marriage was nevertheless valid unless
expressly declared null and void in the act itself. Furthermore, it
is by no means certain that the colonial assemblies were generally
competent, even in this way, to set aside the common law.
[601] Chap. xiv, sec. i, _c_).
[602] Chap. xii, sec. vi.
[603] _MSS. Records of the County Court of Middlesex_ (Apr. 1,
1656), I, 80.
[604] See the case of Usher _v._ Troop (Throop), 1724-29, in
which is raised the question as to whether the "constitutions
and canons ecclesiastical of the Church of England" are binding
in Massachusetts: _MSS. Records of the Superior Court of
Judicature_, 1725-30, fol. 236. _Cf._ chap. xii, secs, i, ii.
After the beginning of independent national life the English common
law as a whole in its various branches was retained as a part
of the law of the land, unless superseded by constitutional or
statutory legislation. It was therefore inevitable that the state
and federal courts, as cases arose, should declare whether it had
been so superseded. There could no longer be any question, as in
the colonial period, regarding the competency of the legislator
to define the conditions of a valid matrimonial contract. A brief
history of the acceptance or rejection of the common-law marriage
in the United States, whether by statute or by judicial decree, may
now be presented.[605]
[605] COOK, "The Mar. Cel. in the U.S.," _Atlantic_, LXI, 520-32,
has given a systematic account of the subject to the year 1888.
To this article, and to his "Reform in the Celebration of
Marriage," _ibid._, 680-90, I am indebted; as also to BENNETT,
"Uniformity in Marriage and Divorce Laws," _Am. Law Register_,
N. S., XXXV, 221-31. _Cf._ CONVERS, _Mar. and Divorce_, 15-119;
STEWART, _Mar. and Divorce_, 78 ff.
The leading case came before the supreme court of New York in
1809, when Chief Justice Kent accepted as binding a common-law
marriage, declaring that no solemnization was requisite; that "a
contract of marriage made _per verba de praesenti_ amounts to an
actual marriage, and is as valid as if made in _facie ecclesiae_;"
and that the existence of such a contract may be proved "from
cohabitation, reputation, acknowledgment of the parties, acceptance
in the family, and other circumstances from which a marriage may
be inferred."[606] This decision determined the policy of New York
for nearly a century, until the common-law marriage was at last
superseded by the statute of 1901; and its influence upon the
tribunals of other states has been increased through the sanction
of its doctrine by the leading authorities upon matrimonial
law.[607] The contract by mere present consent of the parties,
regardless of the statutory requirements, has been widely accepted
as valid in the group of southern and southwestern states and
territories. It was so judicially accepted in South Carolina[608]
at least as early as 1832; in Louisiana[609] in 1833; Georgia[610]
in 1860; District of Columbia[611] in 1865; Alabama[612] in 1869;
Arkansas[613] in 1872; Missouri[614] in 1877; and Florida[615] in
1880. By the earlier decisions of Tennessee a strict compliance with
the statute was required, the court even declaring in 1829[616]
that a marriage solemnized before a justice of the peace out of
his own county was "absolutely null and void." This opinion was
sustained by a decree of 1831; but later judgments favor the
common-law agreement. Texas has had a similar experience. In 1883
and again in 1894 the common-law contract was repudiated, the court
deciding that license and parental consent according to the statute
were essential;[617] but more recently the highest tribunal has
held the opposite view.[618] Among the states of the middle and
western group Pennsylvania in 1814 was first to follow the New York
precedent.[619] Ohio[620] came next in 1861; and Illinois[621] in
1873. By the law of Michigan, declares Judge Cooley decisively in
1875--in an opinion accepted as authority by the federal courts--a
marriage may be good, although the statutory regulations have not
been complied with. "Whatever the form of ceremony, or even if
all ceremony was dispensed with, if the parties agreed presently
to take each other for husband and wife, and from that time lived
together professedly in that relation, proof of these facts would
be sufficient to constitute proof" of a binding marriage; and
"this," he adds, "has become the settled doctrine of the American
courts."[622] This view has been accepted in Iowa[623] in 1876;
Minnesota[624] in 1877; Wisconsin[625] in 1879; Indiana[626] in
1884; Kansas[627] in 1887; Nebraska[628] and Colorado[629] in 1893;
Nevada[630] in 1896; and favored by the decisions of New Jersey[631]
since 1824. Moreover, the Supreme Court of the United States has
sanctioned the same doctrine. In Jewell _v._ Jewell,[632] considered
in 1843, opinions on the question were evenly balanced, just as they
were in the Queen _v._ Millis which came before the Lords during
the next year; but in 1877, in the case of Meister _v._ Moore,[633]
involving a marriage contracted under the law of Michigan, Justice
Strong adopted "as authoritative" Judge Cooley's interpretation
rendered two years before.
[606] In the case of Fenton _v._ Reed (1809), 4 JOHNS., 52; 4
_Am. D._, 244; EWELL, _Cases on Domestic Relations_, 397-99.
Following are the essential facts in this celebrated case. In
1785 John Guest "left the state for foreign parts." During his
absence, in 1792, his wife Elizabeth married Reed. Subsequently
in the same year her first husband, Guest, returned to the state
and there resided until his death in June, 1800. He professed to
have no marital claim upon Elizabeth; so she lived with Reed as
a wife continuously from 1792 until the latter's death in 1806.
Was she the lawful wife of Reed from 1792 to 1800 during the
lifetime of Guest? If not, was she, without the observance of
any formalities, his lawful wife from 1800 to 1806 after Guest's
demise? To the first question the court answered "no," holding
that "the statute concerning bigamy does not render the second
marriage legal, notwithstanding the former husband or wife may
have been absent above five years, and not heard of. It only
declares that the party who marries again in consequence of such
absence ... , shall be exempted from the operation of the statute,
and leaves the question of the validity of the second marriage
just where it found it." To the second question the court
answered "yes," as explained in the text. _Cf._ Starr _v._ Peck,
1 HILL, _N. Y._, 270.
[607] The doctrine of his own decision was formulated in 1826
by KENT in the first edition of his _Commentaries_. Ten years
earlier, in 1816, it had been accepted by REEVE, former chief
justice of Connecticut, in his treatise on the _Law of Husband
and Wife_. It was followed in 1842 by GREENLEAF in his work
on _Evidence_; and later by BISHOP in his well-known book on
_Marriage and Divorce_. On the other hand, the younger PARSONS,
the first edition of whose _Contracts_ appeared in 1853, is
inclined to reject the Kent doctrine: see the 8th ed., II, 78
ff.; and compare COOK, "The Mar. Cel. in the U. S.," _Atlantic_,
XLI, 521, 522.
[608] See Fryer _v._ Fryer (1832), RICHARDSON'S _Equity Cases_,
92 ff. _Cf._ the case of Vaigneur _v._ Kirk (1808), 2 _S. C.
Equity Reports_, 640-46; and 10 MCCORD'S _Statutes_, 357, ed.
note; _ibid._, II, 733, ed. note.
[609] Holmes _v._ Holmes (1833), 6 _La._, 463. In this state,
under influence of French and Spanish law, the common-law
contract appears always to have been regarded as valid.
[610] Askew _v._ Dupree (1860), 30 _Ga._, 173; _cf._ Clark _v._
Cassidy, 64 _Ga._, 662.
[611] Blackburn _v._ Crawfords (1865), 3 WALL., 175; Diggs _v._
Wormley (1893), 21 _D. C._, 477, 485; Jennings _v._ Webb (1896),
8 _App. D. C._, 43, 56. _Cf._ Green _v._ Norment (1886), 5
MACKEY, 80-92.
[612] In Campbell _v._ Gullatt (1869), 43 _Ala._, 57. But see the
earlier decisions in S. _v._ Murphy (1844), 6 _Ala._, 765-72; 41
_Am. D._, 79; and Robertson _v._ S. (1868), 42 _Ala._, 509; being
conflicting and indecisive as to whether the statute is merely
"directory."
[613] Jones _v._ Jones (1872), 28 _Ark._, 19-26. According to S.
_v._ Willis (1848), 9 _Ark._, 196-98, consent of the parent is
not essential.
[614] Dyer _v._ Brannock (1877), 66 _Mo._, 391; 27 _Am. R._,
359. The license required by statute is not essential to a valid
marriage: S. _v._ Bittick (1890), 103 _Mo._, 183.
[615] Daniel _v._ Sams (1880), 17 _Fla._, 487-97.
[616] In Bashaw _v._ S. (1829), 1 YERG., 177; affirmed in Grisham
_v._ S. (1831), 2 YERG., 589; opposed in Andrews _v._ Page
(1871), 3 HEISK., 653-71; and apparently questioned in Johnson
_v._ Johnson (1860), 1 COLDW., 626.
[617] Dumas _v._ S. (1883), 14 _Tex. Cr. App._, 464-74; Tel. Co.
_v._ Procter (1894), 6 _T. C. A._, 300, 303.
[618] Cumby _v._ Henderson (1894), 6 _T. C. A._, 519-23; 25 _S.
W._, 673; Ingersol _v._ McWillie (1895), 9 _T. C. A._, 543, 553;
30 _S. W._, 56; Chapman _v._ Chapman (1897), 16 _T. C. A._, 384;
and especially Railway Co. _v._ Cody (1899), 20 _T. C. A._,
520-24.
[619] Hantz _v._ Sealey (1814), 6 BINN., 405; also Rodebaugh _v._
Sanks (1833), 2 WATTS, 9-12; and Commonwealth _v._ Stump (1866),
53 _Pa._, 132-38.
[620] Carmichael _v._ S. (1861), 12 _Ohio_, 553-61.
[621] Port _v._ Port (1873), 70 _Ill._, 484; Bowman _v._ Bowman
(1887), 24 _Ill. App._, 165-78.
[622] Hutchins _v._ Kimmel (1875), 31 _Mich._, 126-35; 18 _Am.
R._, 164-69.
[623] Blanchard _v._ Lambert (1876), 43 _Iowa_, 228-32. Since
1851 the statutes of Iowa have clearly accepted the common-law
marriage: _Code of Iowa_ (1851), secs. 1474, 1475; _ibid._
(1897), 1124.
[624] S. _v._ Worthington (1877), 23 _Minn._, 528.
[625] Williams _v._ Williams (1879), 46 _Wis._, 464-80; Spencer
_v._ Pollock (1892), 83 _Wis._, 215-22.
[626] Teter _v._ Teter (1884), 101 _Ind._, 129; 51 _Am. R._, 742.
In Roche _v._ Washington (1862), 19 _Ind._, 53, the opposite
position is taken.
[627] S. _v._ Walker (1887), 36 _Kan._, 297; 59 _Am. R._, 556.
[628] Bailey _v._ S. (1893), 36 _Neb._, 808-14.
[629] Israel _v._ Arthur (1893), 18 _Col._, 158, 164; Taylor _v._
Taylor (1897), 10 _C. A._, 303, 304.
[630] S. _v._ Zichefield (1896), 23 _Nev._, 304-18.
[631] Wyckoff _v._ Boggs (1824), 2 HALST., 138-40; and especially
Pearson _v._ Howey (1829), 6 HALST., 12, 18, 20.
[632] Jewell _v._ Jewell (1843), 1 HOWARD, 219-34.
[633] Meister _v._ Moore (1877), 96 _U. S._, 76-83.
On the other hand, in a number of states the courts have decided
that the common-law marriage is entirely superseded by the statutes,
even when these do not contain words of nullity, and sometimes
when they are expressed in terms far less "mandatory" than in some
instances where the opposite doctrine prevails.[634] In the words
of a writer who believes the courts are historically and logically
justified in this view, "they affirm that when from a comparative
study of the whole course of legislation as well as of the terms
of the various statutes, it is the plain intent to make conformity
to any statutory formality indispensable to the constitution of
marriage, such common law is _ipso facto_ repealed, and a marriage
celebrated by mere consent, without this formality, has no validity
whatever in law. One such indispensable formality, at least, they
find in the intent of the statutes, namely, the presence at the
celebration of an authorized third person."[635] First to take this
position was Massachusetts in 1810, the year after Kent's opposite
decision already cited, when Chief Justice Parsons, in an opinion
which has been steadily sustained ever since, but which is not
remarkable for historical knowledge, held that "when our ancestors
left England, and ever since, it is well known that a lawful
[valid?] marriage there must be celebrated before a clergyman in
orders;" and hence in Massachusetts, although "not declared void by
any statute," a "marriage merely the effect of a mutual engagement
between the parties, or solemnized by any one not a justice of the
peace or an ordained minister, is not a legal marriage, entitled to
the incidents of a marriage duly solemnized."[636] Since 1848 the
Massachusetts doctrine has been followed by Vermont.[637] In the
same year it was adopted in New Hampshire;[638] but in the absence
of more recent decisions the law of that state cannot be regarded
as absolutely settled. It was favored in Maine[639] by a decision
of 1841, although the informal contract was not then positively
rejected by a direct decree. The courts of Connecticut are silent on
the question; but the statute declares that all marriages "attempted
to be solemnized by any other person" than those authorized by it
"shall be void."[640]
[634] See BENNETT, "Uniformity in Mar. and Div. Laws," _Am.
Law Register_, N. S., XXXV, 223 ff., who points out that the
statutes of Alabama, Pennsylvania, and Missouri, where the
common-law marriage is valid, are far more prohibitory than those
of Massachusetts, Maryland, or West Virginia, where it is void.
The statute of Alabama says positively that "no marriage shall
be solemnized without a license issued by the judge of probate
of the county where the female resides;" but a marriage so
solemnized is nevertheless valid.
[635] COOK, "The Mar. Cel. in the U. S.," _Atlantic_, LXI, 523.
[636] Milford _v._ Worcester (1810), 7 _Mass._, 48-58. See also,
to the same effect, Commonwealth _v._ Munson (1879), 127 _Mass._,
459-71; 34 _Am. R._, 411. In this case it is correctly held that
Justice Bigelow's decision in Parton _v._ Hervey (1854), 1 GRAY,
119, that the statute is merely "directory," relates to banns
and parental consent, and not to solemnization; for Milford _v._
Worcester is cited as authority.
[637] See the opinion of Judge Redfield in Northfield _v._
Plymouth (1848), 20 _Vt._, 582, holding that a common-law
marriage could not be regarded as valid without "virtually
repealing our statutes," thus reversing the doctrine of Newbury
_v._ Brunswick (1829), 2 _Vt._ 151; 19 _Am. D._, 703; and consult
especially Morrill _v._ Palmer (1895), 68 _Vt._, 1-23, holding
"that what ... Kent calls the 'loose doctrine of the common law,'
in relation to marriage, was never in force in this state."
[638] See the opinion of Chief Justice Gilchrist in Dumbarton
_v._ Franklin (1848), 19 _N. H._, 257, rejecting as irrelevant
Judge Woodbury's _obiter dictum_ in Londonderry _v._ Chester
(1820), 2 _N. H._, 268-81, usually cited to sustain the
common-law marriage; but this objection to it is scarcely valid.
[639] S. _v._ Hodskins (1841), 19 _Me._, 155-60; 36 _Am. D._,
743. _Cf._ Ligonia _v._ Buxton, 2 _Me._, 95. According to Hiram
_v._ Pierce, 45 _Me._, 367, the statute of Maine, like that of
Massachusetts, is only directory regarding parental consent in
case of minors.
[640] _Gen. Stat. of Ct._ (1902), 1086. According to REEVE, _Law
of Husband and Wife_, 252 ff.; followed by KENT, _Commentaries_,
II, secs. 87 ff., the common-law marriage was formerly good in
Connecticut.
Several states of the South have taken a similar stand.
Maryland[641] and North Carolina[642] have thus repudiated the
common-law agreement, a formal celebration being made essential
to a valid marriage. The supreme court of West Virginia has gone
farther, holding that not only solemnization, but also license and
other prescribed formalities, are requisite. "Our statute," runs
a decision of 1887, "has wholly superseded the common law, and in
effect, if not in express terms, renders invalid all attempted
marriages contracted in this state, which have not been solemnized
in compliance with its provisions.... When the terms of the statute
are such that they cannot be made effective, to the extent of giving
each and all of them some reasonable operation, without interpreting
the statutes as mandatory, then such interpretation should be given
them."[643] In 1821 the common-law contract was judicially accepted
in Kentucky;[644] but by the model statute of 1852--remarkable for
clearness and terseness--a "marriage is prohibited and declared
void when not solemnized or contracted in the presence of an
authorized person or society."[645] Likewise in Mississippi until
recently the informal agreement was held sufficient to constitute
the parties husband and wife;[646] but since 1892 the statute
renders a marriage invalid if contracted or solemnized without a
previous license.[647] Moreover, in Porto Rico, by the code of
1902, the authorization and celebration of the contract "according
to the forms and solemnities prescribed by law" are requisite for
a valid marriage.[648] With these six southern and the four New
England commonwealths must be classed five states of the middle
and western division. Two of these--Oregon[649] since 1870 and
Washington[650] since 1892--have proceeded by judicial decree; and
three--California[651] in 1895, Utah[652] in 1898, and New York[653]
in 1901--have superseded the common-law agreement by statutes
containing the nullifying clause.
[641] The common-law marriage was sustained in Cheseldine _v._
Brewer (1739), 1 HAR. AND MCH., 152; overruled and the opposite
doctrine supported in Denison _v._ Denison (1871), 35 _Md._, 361.
In Jackson _v._ Jackson (1894), 80 _Md._, 176-96, it is held that
the "fact that the marriage was performed by a clergyman may
be inferred from the evidence." _Cf._ BISHOP, _Mar., Div., and
Sep._, I, sec. 416, p. 179.
[642] S. _v._ Samuel (1836), 2 DEV. AND BAT., 177-85; followed
in S. _v._ Patterson (1842), 2 IREDELL, _N. C._, 346-60; left
undecided in S. _v._ Ta-cha-na-tah (1870), 64 _N. C._, 614.
_Cf._ S. _v._ Robbins (1845), 6 IREDELL, _N. C._, 23-27, where
apparently a celebration, but not a license, is held essential to
a valid marriage (25); and especially S. _v._ Wilson (1897), 121
_N. C._, 657, where it is declared that a marriage "pretendedly
celebrated before a person not authorized would be a nullity."
[643] Beverlin _v._ Beverlin (1887), 29 _W. Va._, 732-40.
[644] Dumaresly _v._ Fishly (1821), 3 A. K. MARSHALL, 368-77. See
also Commonwealth _v._ Jackson, 11 BUSH., _Ky._, 679.
[645] _Acts_ (1850-51), 212-16 (law in force July 1, 1852);
sustained in Estill _v._ Rogers (1866), 1 BUSH., _Ky._, 62;
Stewart _v._ Munchandler, 2 BUSH., _Ky._, 278.
[646] Hargroves _v._ Thompson (1856), 31 _Miss._, 211; Dickerson
_v._ Brown (1873), 49 _Miss._, 357; Floyd _v._ Calvert (1876), 53
_Miss._, 37; Rundle _v._ Pegram (1874), 49 _Miss._, 751.
[647] _Ann. Code of Miss._ (1892), 679.
[648] _Rev. Stat. and Codes of Porto Rico_ (1902), 805.
[649] Holmes _v._ Holmes (1870), 1 ABB., _Cir. Ct._ (U. S.), 525,
declaring the statute regarding the solemnization of marriage
mandatory.
[650] _In re_ McLaughlin's Estate (1892), 4 _Wash._, 570; 30
_Pac. R._, 651; _in re_ Wilbur's Estate (1894), 8 _Wash._, 35.
[651] It may require judicial interpretation to determine the
law of California. Sec. 55 of the _Civil Code_, since the act of
1895, does not contain the _usual_ words of nullity; but sec. 68
declares that a marriage is not invalidated by violation of the
provisions governing solemnization, license, authentication, and
record "_by other than the parties themselves_." One or two of
the superior court judges have already decided that the statutory
formalities are mandatory.
[652] The _Rev. Stat. of Utah_ (1898) rendered marriage void when
not celebrated before an authorized person. Before this date a
common-law contract was binding: U.S. _v._ Simpson, 4 _Utah_,
227; 7 _Pac._, 257.
[653] See chap. xvi, sec. iii, _a_).
All the other states and territories have enacted laws governing
the celebration and other preliminaries of marriage; but whether
these laws are to be regarded as mandatory or merely directory has
not yet been judicially determined. The courts are thus silent in
Connecticut and Rhode Island,[654] of the New England group; in
Arizona, Indian Territory, New Mexico, Oklahoma, and Virginia, of
the southern and southwestern group; in Alaska, Delaware, Hawaii,
Idaho, Montana, North Dakota, South Dakota, and Wyoming,[655] of
the middle and western division. Of these Delaware, Virginia,[656]
and Connecticut would probably reject the common-law doctrine, were
the question brought to a judicial test; while it would almost
certainly be accepted by the courts of the other twelve states
and territories, should the statutes remain as they are. Indeed,
in a number of the last-named states, notably in Idaho, Montana,
and South Dakota, it is virtually sanctioned by the terms of the
statutes themselves.
[654] In Peck _v._ Peck (1880), 12 _R. I._, 485-89, the court
declined to decide whether a common-law contract is valid, there
being no prohibitory language in the statute. _Cf._ also S.
_v._ Boyle (1882), 13 _R. I._, 537; and Ben. Association _v._
Carpenter (1892), 17 _R. I._, 720. In Williams _v._ Herrick
(1899), 21 _R. I._, 401-3, the court appears to favor the
validity of a marriage without a formal ceremony, if begun with
"matrimonial intent."
[655] According to Connors _v._ Connors (1895), 40 _Pac._, 966, a
license is not essential in Wyoming.
[656] In Beverlin _v._ Beverlin, 29 _W. Va._, 736, the judge
says, "I have been unable to find any case in which the courts of
Virginia or this state have ever held that a common-law marriage
was held valid;" and this, he adds, is "persuasive evidence" that
it is not. In Colston _v._ Quander (1877), 1 _Va. Decisions_
(not officially reported), license is declared not essential;
but in this case there was a formal celebration. On the probable
position of the states which have not decided see COOK, _The Mar.
Cel. in the U. S._, 525, 526.
It appears, then--to summarize the details presented in the
foregoing discussion--that twenty-three states and territories
have already sanctioned or favored the common-law marriage; while
twelve others are soon likely to do so, unless the statutes
shall be changed. On the contrary, eighteen commonwealths have
repudiated or are inclined to repudiate the informal agreement.
Six of these, it should be noted, have liberated themselves by
statute; five--Mississippi, California, Utah, New York, and Porto
Rico[657]--having done so within the last ten years. This is a
fact of vast social importance. From it the reformer may gather
new courage. In such legislation, in response to a better-educated
popular sentiment, lies the hope of the future: to free American
society from the manifold evils which lurk in the doctrine of the
common-law marriage. It is, indeed, marvelous that a progressive
people with respect to an institution which is the very basis of
the social order should so long neglect the function of proper
public control. For what, according to its nature, is the common-law
marriage? Its possibilities for anarchy are realistically described
by Chief Justice Folger, of New York, in 1880, when that state was
still exposed to them. "A man and a woman," he declares, "who are
competent to marry each other, without going before a minister or
magistrate, without the presence of any person as a witness, with
no previous public notice given, with no form or ceremony, civil
or religious, and with no record or written evidence of the act
kept, and merely by words of present contract between them, may
take upon themselves the relation of husband and wife, and be bound
to themselves, to the state, and to society."[658] Verily this is
individualism absolutely unrestrained! It is the simple truth, as
already suggested, that in principle the canon law as it existed in
Catholic lands before the Council of Trent, and in England until the
marriage act of 1753, with a possibility of all of its attendant
scandals and hardships, still survives in the United States.[659]
The apology of the Middle Ages was found in the sacramental dogma.
Matrimony as such, under whatever conditions contracted, was too
"holy" to be dissolved or effectively hindered for the ordinary
prudential reasons which appeal to the statesman or legislator.
Today there is doubtless a lingering tradition of the same false
sentiment. Yet the common-law marriage is now supported on two
principal grounds. The innocent offspring, we are told, ought not to
suffer because the parents have neglected the formalities prescribed
by a mere statute. Moreover, to declare an irregular, perhaps a
clandestine, union void is to invade the most sacred right of the
individual. There is urgent need that the American people should
realize the fallacy of such arguments. Far better that the children
of a delinquent minority should bear the stain of illegitimacy than
that the welfare of the whole social body should be endangered. For
the same reason the supposed right of the individual must yield to
the higher claims of society. In no part of the whole range of human
activity is there such imperative need of state interference and
control as in the sphere of the matrimonial relations. In this field
as in others we are beginning to see more clearly that the highest
individual liberty can be secured only when it is subordinated to
the highest social good. It is, however, not merely the public which
suffers. "Our common-law marriage fails to protect not only the
contracting parties, but also the families to which they belong.
Indeed to protect the latter it makes not the least attempt, and in
this respect it is far behind the law of Western Europe."[660] As a
preliminary to a general reform of our marriage laws as a whole it
is earnestly to be desired that every state or territory not already
emancipated should enact a statute as clear and decisive as that of
Kentucky, Utah, or New York, absolutely repudiating the common-law
contract. It is only through legislation that this revolution can
be effected. It is not the proper function of the courts to attempt
it. It may be that those states which have superseded the common
law through judicial interpretation of their statutes have done
well. The end has perhaps justified the means. It is quite possible
that in those cases it was the intent of the lawmaker to render the
statute mandatory. Nevertheless he did not express his intent in
the form which has itself become a part of the common law. Chief
Justice Parsons and his followers may have been enforcing a "higher
law;" but it was a "judge-made" law. History is on the side of Chief
Justice Kent and the great number of jurists who have followed him.
Moreover, it is evident from the trend of recent decisions that
not much more can be expected from the courts. According to the
overwhelming weight of juridical opinion, to go farther in this
way would be to legislate consciously through the bench. Besides
"bench-made" law is always _ex post facto_. The only practical
course is to create or further develop a sound popular sentiment in
favor of proper social control of the marital relation; and then to
express that sentiment in statutes whose terms are mandatory beyond
the possibility of evasion.
[657] Of course the statute of Porto Rico must be regarded as
preventing, not abolishing, the common-law marriage.
[658] Quoted by COOK, "The Mar. Cel. in the U. S.," _Atlantic_,
LXI, 526. On the frauds perpetrated under the guise of the
common-law marriage see also the opinion of Judge Pryor of New
York: quoted by RICHBERG, _Incongruities of the Divorce Laws_,
61, 62. "It is singular," said Chief Justice Gilchrist in 1848,
"that the most important of all human contracts, on which the
rights and duties of the whole community depend, requires less
formality for its validity than the conveyance of an acre of
land, a policy of insurance, or the agreements which the statute
of frauds requires should be in writing."--Dumbarton _v._
Franklin, 19 _N. H._, 264, 265.
[659] Except, perhaps, in practically getting rid of the subtle
doctrine of marriage _per verba de futuro cum copula_: see the
decision in Starr _v._ Peck (1841), 1 HILL, _N. Y._, 270; EWELL,
_Cases_, 403. _Cf._ Cheney _v._ Arnold (1857), 15 _N. Y._, 345;
EWELL, 407-13; this being followed in Duncan _v._ Duncan, 10
_Ohio_, 181; but discarded in Port _v._ Port, 70 _Ill._, 484; and
Peck _v._ Peck, 12 _R. I._, 484; 34 _Am. R._, 702. _Cf._ BISHOP,
_Mar., Div., and Sep._, I, secs. 353-77, pp. 147-62; KENT,
_Commentaries_, II, sec. 87 ff., pp. 119 ff.
[660] COOK, "The Mar. Cel. in the U. S.," _Atlantic_, LXI, 528.
_b_) _Resulting character of matrimonial legislation._--The absurd
and demoralizing conflict between common-law validity and statutory
legality ought first to be abolished, because in large measure it
hinders, even frustrates, the effort to develop a thorough and
uniform system of matrimonial administration in the United States.
This once effected, there will remain plenty of hard work to do. If
we consider the details of our legislation, as already analyzed in
the sixteenth chapter, we perceive in nearly every department urgent
need of reform, often of radical innovation. Almost everywhere there
is a want of clearness, certainty, and simplicity; and this defect
is all the more harmful because of the lack of uniformity among
the different states. Diversity, even conflict, in every branch of
state legislation is a burdensome incident of the federal system;
and in no branch is the evil more formidable than in the field of
marriage and divorce. As hereafter suggested, we need not despair
of eventually overcoming it; but from the very nature of the case
it may be many years before an effective remedy can generally be
applied. In the meantime it is all the more necessary that the
laws of each individual state should be made as clear, simple, and
efficient as possible, and that every opportunity should be seized
to prepare the way for a common matrimonial code for the whole
country.
First of all, the statutes relating to the preliminaries of
marriage ought to be overhauled. Already during the past century
progress has been made. Within the last two decades in particular
many reforms in matters of detail have been carried out in various
states. Furthermore, in the broad features or outlines of the law
throughout the country an approximation to a uniform system has
been attained; and this fact may be of great significance when the
task of securing absolutely the same law for all the states is
earnestly taken in hand. Thus there is practical agreement among
the states and territories in requiring a license from a local
civil officer before a marriage may be legally celebrated. The dual
system of banns or license survives only in Maryland, Georgia,
Delaware, and Ohio. All the other states and territories, except
Alaska, New Mexico, and South Carolina, where there is no statute
governing the subject, with New York and New Jersey, where there is
a substitute plan, have each adopted a system of civil license or
certificate, the same in its purpose, though varying widely in the
forms and procedure prescribed. This is a stride in the direction
at once of simplicity and harmony; and besides, for its own sake,
it is well to get rid of the ancient device of oral banns, which
has proved as unsatisfactory in America as in the Old World. Again,
we have developed substantially a common statutory law regarding
the manner of entering into the marital relation. Everywhere,
except in Maryland and West Virginia, where a religious ceremony
is essential to a valid union, the optional civil or religions
ceremony, at the pleasure of the persons contracting, is sanctioned
by the law. As already seen, this dual system has its roots planted
deeply in the history of two centuries. It is clearly entitled to be
regarded as the American plan; although since 1836, with important
modifications, it has also been accepted in the British Isles. It
does not follow, however, that it is the ideal plan. It is too
complex; and it is an obstacle in the way of developing the most
efficient system of matrimonial administration. It is inconsistent
with a proper social control. It will prevent the attainment of the
"maximum of simplicity and the maximum of certainty" in matrimonial
legislation. It is awkward, thoroughly illogical, to intrust the
execution of that part of the law on which publicity and security so
much depend to two different classes of persons: the one consisting
of civil officers created and wholly under control of the state; the
other in its origin, its personnel, and its character completely
beyond such control, and only subject to administrative rules and
restraints. With this system it will be very difficult to establish
a proper standard of special fitness, of special knowledge, such
as is highly needful to exact from public servants intrusted with
functions of vast social importance. European peoples have reached
a wiser solution of the problem in prescribing in all cases without
exception, as the prerequisite of a valid marriage, the obligatory
celebration before an authorized civil officer, leaving the wedded
pair to decide, as wholly a private matter, whether a religious
ceremony shall be added.
It is, however, highly probable that the optional system of
celebration is too firmly grounded in popular sentiment to be soon
discarded. The practical reformer must perforce content himself
with striving to make it as effective as possible. At present the
law is very lax in providing proper safeguards for the religious
solemnization. In the first place, the qualified minister should be
authorized to act only within the local district of his permanent
residence, the limits thereof to be defined by statute. By the
early laws of New England, as we have already seen, the clergyman's
functions were carefully confined to his own town, district, or
county; and similar requirements appear elsewhere in some of the
older statutes. This wise policy has been gradually abandoned, so
that now in no instance is there such a restriction. Only in a
very few cases, as in Massachusetts, Rhode Island, and Vermont, is
authority conferred only upon ministers dwelling within the state.
Apparently in the great majority of states and territories, although
the statutes are often far from clear, all qualified ministers,
residing anywhere in the United States, may act. Indeed, Louisiana
is still more generous, granting full privilege to celebrate
wedlock to any clergyman or priest "whether a citizen of the
United States or not." Another useful lesson may be learned from
the early laws. Proofs of ordination by the filing of credentials
were often demanded. Some of the southern states went farther,
exacting from the minister a bond for the faithful performance
of his trust, in addition to credentials of ordination and good
standing. Both these conditions are still enforced by the statutes
of Kentucky,[661] Virginia, and West Virginia. Some other states
have contented themselves with less severe requirements. Rhode
Island has thus a careful system of local registration; in Maine
and New Hampshire the clerical celebrant must secure a "commission"
from the governor; in Minnesota, Wisconsin, Nevada, and Arkansas he
must file his credentials with the proper county officer and receive
a certificate; Ohio requires a license from the county judge of
probate; a license from the proper authority is also demanded in
Hawaii;[662] but in the majority of cases no such precautions are
specified in the statutes. Here is need of reform. Under present
social conditions, and considering the vast multiplication and
subdivision of religious sects, the Virginia system is not too
rigorous to justify its adoption throughout the land. Furthermore,
the future lawmaker may perhaps get a suggestion from English
legislation, which has had to deal with the same problem. The
ministers of every religious sect are authorized to celebrate
marriages according to its own rites; but, aside from Jews, Quakers,
and the Church of England, otherwise provided for in the statute,
they may do so only in a "registered building" and in the presence
of the civil registrar of the district and two witnesses.
[661] _Kentucky Stat._ (1903), 843, 844.
[662] _Civil Laws of the Hawaiian Islands_ (1897), 700.
The laws regarding the civil ceremony are also seriously defective,
if not in all respects equally lax. The magistrate in the exercise
of his functions is not usually restricted to a local district
sufficiently small to guarantee safe administration. In this regard
the colonial and early state legislation was superior. At present
in twenty-two states and territories the justice of the peace, or
the corresponding local officer, is confined to his own county or
district. Elsewhere he may act anywhere within the commonwealth;
and this is almost universally the rule with the higher judges and
officials who are granted the same authority. In no case, except
in Virginia, and in Massachusetts under the act of 1899, is there
any provision for the appointment of a person to celebrate wedlock
for an area of less extent than the county. Nor are the persons
to whom is confided this important social trust possessed of the
needful qualifications. They are not selected because of special
fitness. In no instance, unless in Virginia, does the law provide
for the separate office of marriage celebrant. The duties of such
a post are conferred, _ex officio_, in a haphazard fashion, upon
a great variety of functionaries, who are either incompetent or
else too busy with other matters to discharge them properly. As
a rule, the justice of the peace is thus notoriously unfit; and
there is something grotesque in giving authority to solemnize
marriages to aldermen and police justices, as in New York; to
speakers of the house and senate, as in Tennessee; or to the county
supervisors, as in Mississippi. In this regard we have much to learn
from European states, some of which have created special local
officers for this branch of administration. Thus in France[663]
all marriages are regularly celebrated before the mayor of the
commune; in Germany,[664] before the registrar of the district in
which one of the betrothed persons resides, or before some civil
officer designated by him in writing; while in England the legal
celebrant in case of civil procedure is also the district registrar,
whose presence is likewise requisite at the religious ceremony
when conducted according to the rites of the nonconformist sects.
Massachusetts alone has taken a step in the right direction. The
act of 1899, already summarized, not only provides that no justice
of the peace--except when the holder of a specified clerical
office--shall solemnize marriage unless specially designated
therefor by the governor's certificate, but it also limits the
number of justices who may be thus licensed. Touching another point
in this connection the American lawmaker is at fault. Often there
is no direct provision to secure evidence of the contract. Only
nineteen of the fifty-three[665] states and territories expressly
require the presence at the ceremony of even one witness; while in
two or three other cases the statute appears to take their presence
for granted.
[663] BODINGTON'S KELLY, _French Law of Marriage_, 12.
[664] By the law of 1875 marriages are thus celebrated before
the local _Standesbeamten_: KOHLER, _Das Eherecht des bürg_.
_Gesetzbuches_, 16, 17, 55 ff.
[665] Counting Hawaii which was not included in chap. xvi.
The license system is uncertain and complex in many of its features.
To guard against the clandestine marriage of minors, an affidavit
from either the bride or bridegroom ought to be made obligatory in
all cases, instead of leaving its requirement to the discretion
of the officer, as is now usually the practice where there is any
provision at all regarding the matter. In several instances the age
below which parental consent is required is still too low; and the
laws of some states are entirely silent on the subject. Throughout
the country the limit for each sex ought to coincide with the
attainment of legal majority.[666] More care should be taken to
prevent deception when consent of parent or guardian is produced in
writing. At the very least, in harmony with the requirement of many
states, the affidavit of one witness to the signature should always
be made obligatory; and in every such case it might be well as a
guaranty to exact a license bond.[667] There is a still graver fault
in the license laws of nearly the whole country. Nowhere, except in
Porto Rico, is there any adequate provision regarding notice or the
filing and trial of objections to a proposed marriage. Maine and
Wisconsin have each made a start in requiring the certificate or
license to be procured five days before the celebration. No other
state, except New Hampshire[668] and New Jersey in the case of
non-residents, seems to have provided for such a delay; and in all
cases apparently, except Porto Rico, the license is issued at the
time the notice of intention to marry is filed.[669] All this is
contrary to sound public policy. The notice of intention should be
recorded for a reasonable period, say ten days, before issuance of
the license; and during this term it should be officially posted,
and also published in the newspapers--not merely concealed in the
register or published at the discretion of the official, as is
now the usual course. Objections might then be filed, and in case
of need tried in a court clothed with proper jurisdiction, before
the celebration were allowed to proceed. Under the existing state
legislation it would be difficult, certainly awkward, to stop a
proposed marriage on the ground of alleged legal impediments.
To make an objection effective, it might be necessary either to
"anticipate the notice" or to interrupt the nuptial ceremony.[670]
There is also much confusion, and uncertainty regarding the
place of obtaining the license and that of making return. In no
instance is a definite term of residence for either the man or the
woman prescribed; and this is a fruitful source of clandestine
marriage.[671] A glance at the facts collected in the sixteenth
chapter will show that in some states the license must be secured
in the place of the bride's residence; in others, in that of the
marriage; while in a third group it may be issued in the place where
either dwells. Indeed, Pennsylvania, more liberal still, allows a
choice among all three places. The same laxity exists regarding the
place of return; and sometimes the place of return is not the same
as that of issue. A reasonable term of residence ought always to be
required; and, unless in cases of emergency, the license should be
issued by, and return made to, the same official in the district
where the woman dwells. Even the lack of uniformity in license fees
is sometimes the cause of migration to neighboring districts for
the sake of cheaper weddings.[672] Finally, a marriage entered into
without license, just as without authorized celebration, should be
declared null and void by the statute.
[666] In "Diagnostics of Divorce," _Jour. of Soc. Sci._ (Am.
Assoc.), XIV, 136, PROFESSOR ROBERTSON takes the extreme view
that "no person should be marriageable under the age of 21, and
a marriage ceremony celebrated between persons either of whom is
under age should be _ipso facto_ void."
[667] Neither in England nor anywhere in the United States is
a marriage declared void for want of parental consent. The
leading case on the point is Parton _v._ Hervey, 1 GRAY, 119.
"Some years ago a young girl, only thirteen years of age, named
Sarah Hervey, was enticed away from her widowed mother's house
by a young fellow, named Parton, of bad character and dissolute
habits, who by false representations as to the age of the girl,
procured a marriage license, and persuaded a magistrate to
formally marry them. She returned to the house of her mother
who forbade the young man to see her. Upon his petition against
the mother for writ of habeas corpus, the Supreme Court of
the Commonwealth, after full consideration, ordered the young
wife to be surrendered to the husband, and he bore her away in
triumph.... The mother then brought suit against a confederate
of the husband, who had aided in enticing away the girl and in
practising the fraud upon the magistrate; but the mother again
failed in her efforts to vindicate her rights to protect her
daughter, since it distinctly appeared that the marriage was
with the daughter's full and free consent."--Hervey _v._ Moseley
(1856), 7 GRAY, 449; as summarized by BENNETT, "Uniformity in
Mar. and Div. Laws," _Am. Law Register_, N. S., XXXV, 222.
[668] _Laws of N. H._ (1903), 79.
[669] Louisiana formerly had a law requiring notice of intention
to be filed fifteen days before issue of license; but it appears
to have been repealed. In Porto Rico the period of delay is ten
days.
[670] As suggested by COOK, "The Mar. Cel. in the U. S.,"
_Atlantic_, LXI, 687.
[671] The laxity of the law in this respect, coupled with that
of permitting the license to be issued without delay, is the
most fruitful source of clandestine marriages. There are many
so-called "Gretna Greens" in the United States. One is (or was)
at Aberdeen, O.: WHITNEY, _Marriage and Divorce_, 43; another at
Greenwich, Conn. Oct. 2, 1900, the San Francisco _Chronicle_ had
the following telegram: "Greenwich's reputation as a Gretna Green
and that of Judge Burns of Greenwich of the Borough court as one
who marries all who come, appears to have extended to the Pacific
Slope. On Saturday there arrived in town ---- ---- of Alameda,
California, and ---- ---- of Los Angeles, California. They went
to Judge Burns' office, arranged for the marriage ceremony,
and then secured a marriage license from the town clerk....
Immediately after the ceremony" they "left town, maintaining the
greatest secrecy as is the usual custom." Another wedding resort,
for the benefit of Chicago, is the little town of St. Joseph,
Mich., where in the four years, 1897-1900, 1,594 licenses are
said to have been issued to persons residing outside the state,
the ceremony being performed by ministers. In 1903 an attempt
to adopt the Wisconsin plan, requiring an interval of five days
between the issue of the license and the celebration, failed by a
very few votes.
[672] Examples are given by DIKE, "Statistics of Marriage and
Divorce," _Pol. Sci. Quart._, IV, 597.
During the last fifteen years considerable progress has been made in
the state systems of registration; but in most cases the laws are
still exceedingly lax; and too frequently they are badly executed,
or remain a "dead letter" on the statute book.[673]
[673] On the faults of the registration laws see _ibid._, 594,
595.
The radical reform of the administrative division of our matrimonial
laws on some such lines as those suggested will be a worthy task for
the future legislator. As a necessary antecedent of more detailed
action the official system should be entirely reconstructed. The
simplest mechanism is likely to prove the best. Its elements are
close at hand in the local constitution. Every county should be
divided into districts, for each of which a registrar should be
authorized to license, solemnize, and register all marriages
civilly contracted therein;[674] and to license, register, and
attend religious celebrations. His authority should be carefully
restricted to the district and no other person should be permitted
to share his functions. The district registrars should report at
short intervals to the county registrar, who in turn should annually
submit a summary of statistics to the registrar-general for the
state, by whom the local registrars should be commissioned. If
desirable for the sake of economy, especially in states of sparse
population, the collection and registry of all vital statistics
might be intrusted to the same series of officials.[675] The moral
influence of the creation of a distinct system, such as that
outlined, would itself be of great value. It would effectively
accent the high relative importance to society of matrimonial law
and of intelligent service in its administration.
[674] In his enlightening criticism of our matrimonial laws COOK,
"The Mar. Cel. in the U. S.," _Atlantic_, LXI, 688, has suggested
the division of the county into districts for the appointment of
registrars.
[675] In England the registration of births and deaths in the
district is intrusted to a separate registrar: Compare the
details of the British system as presented in chap. x, sec. iii.
By the law of Massachusetts towns of more than 2,000 inhabitants
may choose a separate registrar to record and license, but not to
celebrate, marriages: see chap, xvi, sec. i, _c_).
Aside from its public features, just considered, the future
matrimonial code of the United States will have to remedy numerous
defects in the substance of the law. These may be seen by reference
to the detailed examination elsewhere presented. In particular,
it will be necessary to get rid of the appalling chaos of state
regulations regarding void and voidable contracts. The absurd
conflicts touching the forbidden degrees of relationship are a
positive social menace. The most serious complications may arise.
For instance, a man and a woman who may be legally wed in the place
where they dwell might, should they move a mile across the state
line and then marry, be guilty of incestuous union and their
children become bastards. Surely it ought to be possible for an
enlightened people to agree upon a common rule in a matter of such
vital concern.[676]
[676] _Cf._ RICHBERG, _Incongruity of the Divorce Laws_, 65 ff.
In many of the states the laws governing the "age of consent"--that
is, the age below which a person may not legally consent to carnal
union[677]--are still very defective, although distinct progress
has been made since 1885. In that year Mr. W. T. Stead's exposure
of the frightful traffic in young girls then tolerated in London
aroused the social conscience on both sides of the sea. The "old
common law period of ten, sometimes twelve, years" was then "the
basis of the age of consent legislation of most of the states, and
also of the law of congress pertaining to rape in the District of
Columbia and other territory under the immediate jurisdiction of
the national government.... It was not until after the astounding
revelations made by Mr. Stead ... that the age of consent laws in
the United States began to attract attention.... Even then the age
of consent in England was thirteen years. One outcome of Mr. Stead's
shocking exposures was the speedy raising of the age by the British
parliament from thirteen to sixteen years, Mr. Gladstone and others
advocating eighteen." The New York Committee for the Prevention of
State Regulation of Vice was already engaged in its long struggle to
"thwart the periodical efforts[678] made to introduce in New York
and other American cities the odious old-world system of licensed
and state-regulated vice; but its members were quite unaware, until
Mr. Stead's startling London revelations suggested the inquiry
here, that, by the age of consent laws of New York and of most of
the states, young girls of ten years were made legally capable of
consenting to their own ruin, and that at that time in one state,
Delaware, the age was at the shockingly low period of seven years!
Bad as English law had been shown to be in its inadequate protection
of girlhood our own legal position ... was found to be still worse.
The New York committee, as soon as the facts were known, inaugurated
a campaign of petitions to sundry state legislatures and to the
congress of the United States, asking that the age be raised to at
least eighteen years, and the work was also entered into earnestly
and effectively by the Woman's Christian Temperance Unions and
the White Cross societies."[679] Under the leadership of Helen H.
Gardener, Frances E. Willard, and others, the women of the country
conducted a veritable "crusade" of education against the existing
state laws, which for zeal, ability, and effective method may well
serve as a model for future united efforts in favor of social
reforms. It was pointed out as a notorious fact "that brothels and
vice-factories get their recruits from the ranks of childhood--from
the ignorance which is unprotected by the law;" that "children's
lives are thus wrecked, and the state is burdened with disease and
vice and crime and insanity, which is transmitted and retransmitted
until its proportions appall those who understand;" and that it
is absurd to make the legal age for consent to a valid marriage
higher than that for consent to prostitution. It was urged that
the age of consent ought to be advanced to that of legal majority;
that girls "have a right to legal protection of their persons,
which is more imperative by far than is the protection which every
state has recognized as a matter beyond controversy when applied
to a girl's property or her ability to make contracts, deeds, and
wills, or to her control of herself in any matters which are of
importance to her as an individual, and to the state, because she
is one of its citizens whose future welfare is a matter of moment
to the commonwealth;" and that in respect to her person, as well
as regarding property or marriage, she should be protected even
against her own will.[680] As a result of the campaign of 1895
alone the age of consent was raised in no less than fifteen states
and territories; and in the outset it was significantly pointed
out that the "two states in which the age of legal protection for
girlhood has been raised to eighteen years are states in which women
vote--Wyoming, upon equal terms with men, and Kansas, in municipal
elections."[681] A brief summary of the laws of the states and
territories regarding the subject under consideration may now be
presented.
[677] "Age of consent laws, in their usual acceptation, refer
to the crime of rape, and designate the age at which a young
girl may legally consent to carnal relations with the other sex.
Statutes pertaining to rape provide, in varying phrase, for the
punishment of 'whoever ravishes and carnally knows a female by
force and against her will,' at any age; and also penalties for
whoever unlawfully and carnally knows a female child, with or
without consent, under a given age."--POWELL, in _Arena_, XI, 192.
[678] "In the New York senate, in 1890, a bill was introduced
to lower the age of consent from sixteen to fourteen years. It
was reported favorably by the senate judiciary committee, but
vigorous protests against the proposed retrograde legislation
were promptly sent to Albany by the friends of purity, and the
disreputable scheme was defeated. It was understood to have
originated with Rochester attorneys who sought thus to provide
a way of escape for a client, a well-to-do debauchee guilty
of despoiling a young girl under the legally protected age of
sixteen." A similar attempt, in the house, in 1892, in the
interest of the New York brothel-keepers, was barely defeated by
calling for the yeas and nays. "In the Kansas senate, in 1889, a
bill was introduced and passed to lower the age ... from eighteen
to twelve years. The house was flooded with earnest protests, and
its judiciary committee reported adversely the disgraceful senate
bill."--POWELL, _loc. cit._, 194, 195.
[679] AARON M. POWELL, editor of the _Philanthropist_, in the
_Arena_ (1895), XI, 192-94. The _Arena_ was the principal
medium of publication for the reformers: see the symposium by
POWELL, GARDENER, and others, "The Shame of America," _Arena_,
XI, 192-215; the symposium by GARDENER, ROBINSON, and others,
_ibid._, XIII, 209-25; the symposium by LEACH and CAMPBELL,
_ibid._, XII, 282-88; SMITH, "Age of Consent in Canada," _ibid._,
XIII, 81-91; and especially GARDENER, "A Battle for Sound
Morality," _ibid._, XIII, 353-71; XIV, 1-32, 205-20, 401-19.
_Cf._ FLOWER, "Wellsprings of Immorality," _ibid._, XII, 337-52.
[680] GARDENER, "A Battle for Sound Morality," _Arena_, XIII,
354, 355.
[681] POWELL, in _Arena_, XI, 195; _cf._ GARDENER, _ibid._, XIII,
358.
Encouraging progress has been made in New England, although, in
comparison with some of the new commonwealths of the West, the
facts are not very creditable. By the Rhode Island statute the
age of consent is sixteen.[682] In New Hampshire it was raised
from thirteen to sixteen in 1897;[683] in Vermont, from fourteen
to sixteen in 1898;[684] and in Connecticut, from fourteen to
sixteen in 1895, while in 1901 the maximum term of imprisonment for
abusing a girl under sixteen was increased from three to thirty
years.[685] The age limit was only ten in Maine until 1887. It
was then raised to thirteen, and in 1889 to fourteen years.[686]
In Massachusetts likewise the disgracefully low age of ten years
for a girl was sanctioned by statute from 1852 until 1886, when
thirteen was substituted. Two years later it was increased to
fourteen; and by an act of 1893 an offense against a female under
sixteen may be punished by imprisonment for life or for any shorter
term of years.[687] The results are even less satisfactory in the
southern and southwestern group of states. Florida now heads the
list, but with a rather inadequate penalty, the age of consent
being raised from sixteen to eighteen years in 1901.[688] Missouri
in 1889 increased the age from twelve to fourteen, and in 1895
advanced it nominally to eighteen; but the provisions of the law are
such as practically to leave the limit of protection at fourteen
years.[689] Previous to 1895 in Arizona the age of consent was
fourteen. In that year it was raised to eighteen; but unfortunately
it was reduced to seventeen in 1899.[690] In Arkansas[691] it was
raised from twelve to sixteen years in 1893; in Louisiana,[692]
from twelve to sixteen in 1896; in the District of Columbia[693]
and in Indian Territory[694] it has been sixteen since 1889; in
Oklahoma[695] it was increased from fourteen to sixteen in 1895; in
Maryland,[696] from ten to fourteen in 1890, and to sixteen in 1898;
in Tennessee,[697] from ten to sixteen years and one day in 1893;
but the statutes of the three states last named are so lax as really
to leave the age of consent at twelve in Tennessee and at fourteen
in Maryland and Oklahoma. Texas advanced the limit from ten to
twelve in 1891, and to fifteen in 1895;[698] South Carolina,[699]
from ten to fourteen, and Virginia,[700] from twelve to fourteen,
in 1896; West Virginia,[701] from twelve to fourteen in 1901;
North Carolina,[702] from ten to fourteen in 1895; Alabama,[703]
from ten to fourteen in 1897; while fourteen is likewise the age
in New Mexico[704] and possibly also in Georgia;[705] but because
of vicious clauses in their statutes a girl is in fact only given
effectual protection below the age of ten in Alabama and North
Carolina, and by common law at the same age in Georgia. Twelve is
the limit in Kentucky;[706] and Mississippi[707] still retains the
shamefully low age of ten years.
[682] _Gen. Laws of R. I._ (1896), 999.
[683] _Laws of N. H._ (1897), 30, 31; _Pub. Stat._ (1900), 832.
[684] _Vermont Stat._ (1895), 877; _Acts and Resolves_ (1898),
90, 91.
[685] _Gen. Stat. of Conn._ (1887), 325; _Pub. Acts_ (1887), 669;
_ibid._ (1895), 580; _ibid._ (1901), 1208; _Gen. Stat._ (1902),
350.
[686] _Rev. Stat. of Me._ (1884), 883; _Acts and Resolves_
(1887), 110; _ibid._ (1889), 170.
[687] _Mass. Acts and Resolves_ (1886), 270; _ibid._ (1888), 40;
_ibid._ (1893), 1381; _Rev. Laws_ (1902), II, 1745.
[688] _Laws of Fla._ (1901), 111; penalty, not less than ten
years' imprisonment, or a fine not exceeding $2,000, or both.
[689] Up to fourteen carnally knowing a girl is rape, punishable
by death or imprisonment for not less than five years, at the
discretion of the jury: _Rev. Stat._ (1899), I, 547. Between
fourteen and eighteen, not only must the girl be "of previously
chaste character"--which begs the whole question--but the penalty
is ridiculously light: imprisonment in the penitentiary for two
years; _or_ a fine of not less than $100 nor more than $500; _or_
confinement in the county jail not less than one month nor more
than six months or both such fine and confinement: _Laws_ (1895),
149; also in _Rev. Stat._ (1899), I, 547. _Cf._ _Rev. Stat._
(1889), I, 850; GARDENER, in _Arena_, XIV, 31.
[690] _Laws of Arizona_ (1895), 48; _ibid._ (1899), 29; the same
in _Rev. Stat._ (1901), 1226: penalty, imprisonment for life or
for not less than five years.
[691] Act of April 1, 1893: _Digest_ (1894), 572: penalty,
not less than five nor more than twenty-one years in prison.
In Arkansas rape is punished by death, and, by exception, the
execution is to be public; but this does not apply in case of
conviction under the consent law.
[692] Act 115 (1896), 165; also in _Rev. Laws_ (1897), 196: "if
any person over the age of 18 years shall have carnal knowledge
of any unmarried female between the ages of 12 and 16 with her
consent he shall be deemed guilty of felony," and be imprisoned
with hard labor not exceeding five years.
[693] Act of Feb. 9, 1889: 1 _Supp. to U. S. Stat._, c. 120, p.
641; also _Code of D. C._ (1902), 170: penalty not less than five
nor more than thirty years' imprisonment, or death when the jury
so determines.
[694] Act of Feb. 9, 1889, applying to all territory in exclusive
jurisdiction of the U. S.: 1 _Supp. to U. S. Stat._, c. 120, p.
641; _Ann. Stat. Ind. Ter._ (1899), 845: first offense, not more
than fifteen years in prison; each later offense, not more than
thirty years.
[695] When the girl is under fourteen the offense is rape
punishable by not less than ten years in the territorial prison;
between fourteen and sixteen the penalty is not less than five
years' such imprisonment, if she be of "previous chaste and
virtuous character": _cf._ _Stat. of Okla._ (1893), 467; and
_Laws_ (1895), 104, 105.
[696] Up to fourteen for the girl the penalty is death or
imprisonment for life or for any definite term from eighteen
months to twenty-one years: _cf._ _Pub. Gen. Laws of Md._ (1888),
I, 533, 534; with _Laws_ (1890), c. 410, p. 447. By the act of
1898, c. 218, abuse of a girl between fourteen and sixteen is
only a misdemeanor punishable by not _more_ than two years in
the house of correction _or_ by a fine not to _exceed_ $500:
PRENTISS'S _Supp. to Code_ (1898), 195.
[697] In Tennessee the offense against a girl below twelve years
of age is punishable, as in case of rape, by death or, if the
jury please, by imprisonment for life or not less than ten years;
from twelve to sixteen, it is a felony, with three to ten years
in prison, if the child be of previous chaste character, and if
she can bring witnesses to support her statements. The one day
was added by way of a joke! See the interesting account of the
passage of the act by DROMGOOLE, in _Arena_, XI, 209-12; and for
the act consult _Laws_ (1893), c. 129, § 1, 273, 274; _Code_
(1896), 1593, 1594.
[698] _Laws of Tex._ (1891), 96; _ibid._ (1895), 79, 104: not
less than two years in the penitentiary.
[699] _Acts of S. C._ (1896), 223: a felony; penalty, death or
imprisonment for life, unless the jury recommends the offender to
mercy, when the court shall reduce the punishment to imprisonment
for a term not exceeding fourteen years.
[700] Act of March 3, 1896: _Acts_ (1895-96), 673: penalty, death
or imprisonment from five to twenty-one years, as the jury may
determine.
[701] _Acts of W. Va._ (1901), 218: penalty, death or
imprisonment from seven to twenty years, as the jury may decide;
but the penalty does not apply to a boy under fourteen ravishing
a girl over twelve "with her free consent."
[702] By the _Code of N. C._ (1883), 444, the age is ten; raised
to fourteen by _Pub. Laws_ (1895), 374; but the crime is only
"punished by fine _or_ imprisonment at the discretion of the
court, provided she has never previously had sexual intercourse
with any male person."
[703] The _Code of Ala._ (1897), 460, punishes the abuse of a
girl below fourteen, at the discretion of the jury, either by
death or by not less than ten years in prison; but an act of
1897, also in the _Code_, punishes carnal knowledge of a female
between ten and fourteen only by a fine of $50 to $500, and the
offender "may be imprisoned in the county jail for six months."
This provision appears to reduce the protection of a child above
ten to little more than a pretense: _Acts_ (1897), 944.
[704] _Comp. Laws of N. M._ (1897), 344: penalty, five to ten
years' imprisonment.
[705] For Georgia, in 1895, the age of consent was reported as
fourteen, or any younger age if the jury finds that "by reason
of her intelligence she knows good from evil": see GARDENER, in
_Arena_, XIV, 415, 416; but I have not been able to find this
provision in the present _Code_. The penalty for rape is death,
unless the jury recommend to mercy, when it is one to twenty
years' imprisonment at hard labor: _Code_ (1896), III, 36, 39.
This penalty applies when the girl is under ten: 11 _Ga._, 227.
[706] _Ky. Stat._ (1899), 516: penalty, ten to twenty years in
prison.
[707] _Ann. Code_ (1892), 372: penalty, death, unless the jury
fix the punishment at life imprisonment. There is in Mississippi
an abduction law to protect girls below sixteen: but the
age-of-consent law stops at ten. _Cf._ GARDENER, _loc. cit._, 416.
The most enlightened legislation regarding the age of consent is
found among the states of the middle and western group. Kansas[708]
in 1887, and Wyoming[709] in 1890, set a good example by raising
it to eighteen years. The same limit was adopted by Nebraska,[710]
Colorado,[711] Idaho,[712] and New York[713] in 1895; by Utah[714]
in 1896; by Washington[715] in 1897; and by North Dakota in
1903.[716] Until 1889 Delaware sanctioned the barbarous age of seven
years. It was then advanced to fifteen, and in 1895 to eighteen,
for both sexes; but the penalties prescribed by the statute are
far too lenient to guarantee entire protection beyond the age of
seven.[717] Next come ten states and districts in which the age is
actually or nominally placed at sixteen years. Minnesota[718] in
1891, South Dakota[719] in 1893, Michigan,[720] Montana,[721] and
Oregon[722] in 1895, Ohio[723] in 1896, and California[724] in 1897,
each advanced to this limit from fourteen. Sixteen is also the age
in Alaska.[725] But in 1902 Ohio took a backward step, so lowering
the penalty for the offense as nearly to destroy the force of her
law. Pennsylvania[726] and New Jersey[727] each raised the age from
ten to sixteen in 1887; but in Pennsylvania the girl must prove
previous good character, and in both states the penalties are too
lax to secure adequate protection beyond the age of ten. Since 1896
the age of consent has been fifteen in Iowa.[728] In Illinois[729]
since 1887, Nevada[730] since 1889, Indiana[731] since 1893,
Wisconsin[732] since 1895, and in Porto Rico by the code of
1902,[733] it is fourteen; while in Hawaii it is but ten years.[734]
[708] _Laws of Kan._ (1887), c. 150, § 1: _Gen. Stat._ (1901),
437: penalty, five to twenty years in prison.
[709] Act of Dec. 18, 1890, amending an act of March 14, 1890,
which fixed the age at fourteen: _Laws of Wyo._ (1890), 130:
_ibid._ (1890-91), 85, 86; _Rev. Stat._ (1899), 1236; penalty,
rape, with imprisonment "not less than one year or during life."
[710] Raised from fourteen: _Laws of Neb._ (1895), 314, 315;
_Comp. Stat._ (1901), 1409: penalty three to twenty years in
prison. But the value of the law is lessened by the provision
that it shall not apply in case of a girl over fifteen if
"previously unchaste."
[711] _Laws of Col._ (1895), 155: penalty, one to twenty years in
prison; raised from sixteen to eighteen.
[712] Raised from ten to fourteen in 1893, and advanced to
eighteen in 1895: penalty, imprisonment for life or not less than
five years. Compare _Rev. Stat. of Idaho_ (1887), 733; _Laws_
(1893), 10, 11; _Laws_ (1895), 19; and _Penal Code_ (1901), 134,
139.
[713] Raised from sixteen: _Laws of N. Y._ (1895), c. 460;
BIRDSEYE'S _Rev. Stat._ (1901), III, 3012: rape in second degree;
penalty, not more than ten years in prison; rape in first degree,
with not less than twenty years in prison, when an imbecile, etc.
[714] _Laws of Utah_ (1896), 87; _Rev. Stat._ (1898), 902, 877:
felony, penalty, not more than five years in prison.
[715] From 1881 to 1897 the age in Washington was twelve: _cf._
_Laws_ (1897), 19; BALLINGER'S _Codes and Stat._ (1897), II,
1951, note. Present penalty, imprisonment for life or any term of
years.
[716] Abuse of a female below eighteen is now made rape in the
first degree: _Laws of N. D._ (1903), 200.
[717] _Laws of Del._ (1889), 951; _ibid._ (1895), 192; _Rev.
Stat._ (1893), 924: when below seven, rape, with death penalty:
when between seven and eighteen, misdemeanor, punished by not
more than seven years in prison or a fine of not exceeding $1,000
or both, at the discretion of the court. _Cf._ GARDENER, in
_Arena_, XIV, 411, 412.
[718] _Gen. Laws of Minn._ (1891), c. 90, § 1, p. 162; _Stat._
(1894), II, 1747: penalty, confinement in the state prison for
life, when the girl is under ten; when between ten and fourteen,
seven to thirty years; between fourteen and sixteen, one to seven
years in state prison, or in county jail three months to one year.
[719] _Laws of S. D._ (1893), c. 138; _Ann. Stat._ (1901), II,
1916, 1917: rape in second degree; penalty, not less than five
years in the state prison.
[720] _Pub. Acts of Mich._ (1895), 170: penalty, imprisonment for
life or any term of years.
[721] _Codes and Stat. of Mont._ (1895), 1062, 1063: penalty,
imprisonment for life or not less than five years.
[722] From 1864 to 1895 the age was fourteen: HILL'S _Codes_
(1892), I, 897; _Laws of Ore._ (1895), 67: penalty, three to
twenty years in prison.
[723] Ohio raised the age from ten to fourteen in 1887, and
advanced it to sixteen by the act of March 3, 1896: _Acts_
(1875), 93 (age made ten years); _ibid._ (1887), 65; _ibid._
(1896), 54: BATES'S _Ann. Stat._ (1897), II, 3144, 3145: rape
if the boy is over eighteen; penalty, three to twenty years in
prison; lowered by _Acts_ (1902), 344, to one to twenty years,
"or 6 months in the county jail or workhouse at the discretion
of the court, which is hereby authorized to hear testimony in
mitigation or aggravation of sentence." _Cf._ BATES, _Ann. Rev.
Stat._ (1903), III, 3307-8.
[724] Compare _Stat. and Amend. to Codes_ (1889), 223, and
_ibid._ (1897), 201: penalty, not less than five years in prison.
[725] _Laws of Alaska_ (1900), 4.
[726] _Pub. Laws of Pa._ (1887), 128; PEPPER AND LEWIS, _Digest_
(1896), I, 1318, 1319: penalty, when the woman child is between
ten and sixteen, fine not exceeding $1,000 and imprisonment not
exceeding fifteen years, if she "was of good repute;" below ten,
without this condition. Thus there is no sure protection beyond
ten. No conviction when boy is under sixteen.
[727] _Laws of N. J._ (1887), 230; _Gen. Stat._ (1896), I, 1096:
penalty, not exceeding $1,000, or imprisonment at hard labor not
more than fifteen years, or both. There is also an abduction law
to protect a female under fifteen: _Gen. Stat._ (1896), I, 1064.
The age is ten in _Rev. Stat._ (1874), 148.
[728] Raised from thirteen; _Acts of Ia._ (1896), 71; _Ann. Code_
(1897), 1888: penalty, imprisonment for life or any term of years.
[729] _Laws of Ill._ (1887), 171; HURD'S _Rev. Stat._ (1901),
634: penalty, when male is above sixteen, imprisonment for life
or not less than one year.
[730] Raised from twelve: _Stat. of Nev._ (1889), 74; _Comp.
Laws_ (1900), 914, 915: rape when the boy is fifteen or more;
penalty, imprisonment for life or not less than five years.
[731] Raised from twelve: _Acts of Ind._ (1893), 22; BURNS'S
_Ann. Stat._ (1901), I, 790: penalty, one to twenty-one years in
prison.
[732] Raised from twelve: _Laws of Wis._ (1895), c. 370, sec. 1;
_Wis. Stat._ (1898), 2668: penalty, five to thirty-five years in
prison.
[733] _Rev. Stat. and Codes of Porto Rico_ (1902), 532, 533:
penalty, not less than five years in the penitentiary.
[734] _Penal Laws of Hawaiian Islands_ (1897), 73.
It appears, then, although in many cases the statutes are very
imperfect, that of the fifty-three states and territories twelve
have actually or nominally advanced the age of consent to eighteen;
one to seventeen; twenty-two to sixteen; two to fifteen; thirteen
to fourteen; while two still retain the low age of twelve and one
that of ten years. It should everywhere be raised to eighteen or
twenty-one--the age of legal majority for a woman in her business or
political relations--by a statute as rigorous as that of Idaho or
Kansas. A wide field for beneficent legislation therefore remains;
and, although morality "can not be legislated into a people," it is
precisely by wise measures of this character that the lawmaker can
render powerful aid in the creation of an environment favorable to
moral and social progress.
_c_) _Resulting character of divorce legislation._--What has just
been said regarding the function of social legislation applies
with special force to the laws relating to divorce. Here, as in
the case of marriage, there is a wide sphere of useful activity
for the lawmaker. He cannot, it is true, reach the root of the
matter: the fundamental causes of divorce which are planted
deeply in the imperfections of the social system--particularly in
false sentiments regarding marriage and the family--and which, as
will presently appear, can only be removed through more rational
principles and methods of education. He can, however, by carefully
drawn and uniform statutes render the external conditions--the
legal environment--favorable for the operation of the proper
remedy. In this sense it is possible to have "good divorce laws,"
just as we may have good charity laws, good laws for the check of
contagious diseases, or good laws in any department of remedial
social legislation.[735] So far as their ethical content is
concerned, good divorce laws, like any other, will not lead, but
must follow at some distance, the highest moral sentiment of the
community. They should, however, follow as closely as practicable
in order to secure the obedience of all. In this field it is highly
essential that the laws should be simple, certain, and uniform.
They should not from their very nature become a dead letter, or
even an encouragement to domestic discord, by offering opportunity
for evasion, collusion, or lax interpretation. Statutes which are
not in good faith executed, like those of France under the old
_régime_, are always a fruitful source of social disorder. They
tend to destroy the reverence for law itself. In this respect the
divorce laws of many of the states are still defective, although
decided progress has been made during the last twenty years. Within
this period the foundation of what may some time become a common and
effective divorce code for the whole Union has slowly been laid.
Little by little, as the detailed discussion already presented in
the seventeenth chapter reveals, more stringent provisions for
notice have been made, longer terms of previous residence for the
plaintiff required, and more satisfactory conditions of remarriage
after the decree prescribed; while some of the "omnibus" clauses
in the list of statutory causes have been repealed. Much of the
best of this work has been accomplished, it is but just to record,
through the activity of the National Divorce Reform League and its
successor, the National League for the Protection of the Family,
under the able guidance of its alert and zealous corresponding
secretary, Rev. Samuel Dike, of Auburndale.[736] By this league
was suggested the compilation of the elaborate report of Hon.
Carroll D. Wright, commissioner of labor, published in 1889; and
this has had a powerful influence for good, providing the body of
facts needful for the wise direction of legal reform. But in many
ways in various states lax legislation is still a demoralizing
social factor. Thus, until the statute of 1902 has perhaps put a
stop to the traffic, Rhode Island was a favorite resort of persons
from New York who were able to escape the marital bond through
the institution of "fake suits" for nonsupport. Reno, Nev., has
continued to be the Mecca of newly divorced people from California
and elsewhere, seeking to evade their own laws by flight to a place
where there are no legal obstacles to immediate remarriage.[737]
Greenwich, Conn., sustains a similar relation to New York. Sioux
Falls, S. D.--to produce one more from the many examples which might
be mentioned--appears still to have a flourishing "divorce colony;"
yet it may be true, as strongly urged, that the laws of this state,
though liberal, are honestly and strictly interpreted.[738] Nor
must it be inferred in such cases that those who seek relief in a
foreign jurisdiction are for that reason unworthy people. There are
sometimes wrongs committed under shelter of the marriage bond so
monstrous as to warrant any legal means of gaining relief. Indeed,
the evil of clandestine divorce in the United States has been much
exaggerated. "A vital question connected with divorce," declares
Commissioner Wright in 1891, "relates to the real or supposed
migration of parties from one state to another for the purpose of
seeking divorce. The popular idea is that a great deal of migration
takes place for the purpose named. This idea is dispelled in some
degree by the statistics that are available upon this point, and
getting at the truth as nearly as possible, it is found that but
little less than 20 per cent, of all the couples in the country were
divorced in other states than those in which they were married.
But the ordinary migration of parties for legitimate purposes,
especially from the older to the newer states, which in 1870 showed
that 23+ per cent. of the native born population, and for 1880 22+
per cent. of such population were living in states other than the
ones in which they were born, would apparently reduce the percentage
of persons migrating for the purpose of divorce to a point even less
than that stated."[739] In fact, for the reason assigned by Mr.
Wright, it seems highly probable that the number of such persons
must be placed at considerably less than 10 per cent. of the whole
number of persons divorced in the United States.[740] Accordingly,
it has been inferred that uniformity of law throughout the country
would do little to lower the divorce rate. "The establishment of
uniform laws," concludes Mr. Dike, "is not the central point of
the problem."[741] Furthermore, there is another important fact
bearing on the evil of clandestine divorce. In a number of cases
arising in various states the courts have declared null and void
decrees secured in jurisdictions where the plaintiffs were not _bona
fide_ residents, even when they had dwelt in such jurisdictions
for the statutory term prescribed as a condition for obtaining a
divorce.[742]
[735] "When the question is asked, 'What is the best divorce
law?' the only answer can be, 'There is no good divorce law.'
There are some faults in human nature which always have existed
and apparently always will exist; and there is no satisfactory
method of dealing with them."--BRYCE, _Studies in Hist. and
Jurisprudence_, 853. This assertion would apply equally well to
the whole body of laws dealing with questions arising in human
conduct or social relations. It is misleading, and instead of
helping to a solution tends to befog the issue.
[736] See the _Reports_ of the league and the numerous papers of
MR. DIKE mentioned in the fourth division of the "Bibliographical
Index."
[737] The evils which may result from conflicts of this kind
in the divorce laws are discussed in a lively way by RICHBERG,
_Incongruity of the Divorce Laws_, 69, 70. But the California act
of 1903, if constitutional, may check the abuse: see pp. 150,
151, above.
[738] See REALF, "The Sioux Falls Divorce Colony and Some Noted
Colonists," _Arena_, IV, Nov., 1891, 696-703, and compare the
remarks of DIKE, in _Rep. of Nat. Div. Ref. League_ (1891), 12,
who has taken pains to correct the exaggerated accounts of the
newspapers; those of HARE, _Marriage and Divorce_, 16 ff.; and
see the articles of A. R. KIMBALL and R. OGDEN mentioned in Part
IV of the Bibliographical Index.
[739] Extract from an address delivered by HON. CARROLL D. WRIGHT
before the fourteenth National Conference of the Unitarian
Society, Saratoga, N. Y., 1891: in _Arena_, V, 143; printed
entire in the _Christian Register_, Oct. 8, 1891; based on the
statistics collected in his _Report_, 193-206. Commenting on the
passage quoted the editor of the _Arena_ says (142):
"Another charge made against our divorce laws is that, not being
uniform, certain states are being overrun with persons of loose
moral character, who seek release from marriage ties. Those who
make this charge seem to overlook the fact that persons of loose
moral character would not be liable to go to the trouble of
leaving their home and state in order to gratify guilty passions.
But those who find the marriage tie too galling for endurance and
yet who wish to be law-abiding citizens presumably, will take
advantage of liberal, enlightened, and humane laws, framed with a
view to increase the happiness of the people rather than made in
such a way as to foster immorality and enforced prostitution."
[740] According to the method of determining the amount of
interstate migration for the purpose of securing divorce
suggested by WILLCOX, "A Study in Vital Statistics," _Pol. Sci.
Quart._, VIII, 90-92.
[741] DIKE, "Statistics of Marriage and Divorce," _Pol. Sci.
Quart._, IV, 608-12.
[742] See Streitwolf _v._ Streitwolf (1900), _Opinions of U. S.
Supreme Court_, No. 13, p. 553, involving a decree of divorce
granted in North Dakota to a resident of New Jersey; Bell _v._
Bell (1900), _ibid._, 551, voiding a similar judgment secured in
Pennsylvania by a resident of New York; and S. _v._ Armington
(1878), 25 _Minn._, 29-39, in which a divorce granted in Utah
to a resident of Minnesota in 1876 was declared void for want
of jurisdiction. Similar decisions, involving the notorious
fraudulent divorces obtained in Utah before the change of the
law in 1878, "have been reached in criminal trials in New York,
Indiana, and Iowa, and in civil suits in Massachusetts, Kansas,
and Tennessee"--the earliest in 1877: WILLCOX, "A Study in Vital
Statistics," _Pol. Sci. Quart._, VIII, 86 n. 1.
To some extent the evil of lax administration of the divorce laws is
exaggerated by popular opinion. In the main the courts are careful
and conscientious in the trial of suits. According to the report
of Commissioner Wright, in seventy counties scattered over twelve
states but 67.8 per cent. of the petitions for divorce were granted.
From this fact it is inferred that "judges exercise a reasonable
care before issuing a decree." For the counties investigated "it
is certain that in about 30 per cent. of the cases of petition a
decree has been denied. The number of cases involved is sufficiently
large and the localities sufficiently different to lead one to
the conclusion that the same state of affairs exists throughout
the country, and that our courts, instead of being careless in
the matter of granting decrees, weigh well the causes alleged,
and do not grant decrees unless the allegations of the libellants
are fairly sustained."[743] Still, under the laws as they exist
there is plenty of opportunity for abuse, even when the court is
cautious. The service of notice on the absent defendant through
the mails or through publication in the newspapers, allowed in
many states, and the fact that only in a few instances is there
any provision requiring the prosecuting attorney to resist an
undefended libel, afford occasions for fraud.[744] Some of the
usual statutory causes of divorce, under the refinement of judicial
interpretation, seem virtually to invite divorce.[745] This is to
some extent true of "nonsupport," "wilful absence," "desertion,"
and "gross neglect of duty;" while "cruelty" has become almost an
"omnibus clause." Under plea of "constructive cruelty" or "mental
anguish" the grievances admitted as valid grounds for dissolution
of wedlock are often trivial or even absurd, although it is likely
that they are sometimes put forward as a shield or substitute for
graver wrongs which the plaintiff is reluctant to disclose.[746]
The general introduction of the decree _nisi_, giving opportunity
for reflection, might prove a wholesome correction of the almost
necessarily liberal policy of the courts in such cases. Divorce
suits are sometimes too hastily disposed of by the judges because
of the pressure of other litigation. The creation of a limited
number of special divorce courts in each of the states might prove a
remedy, if care were taken not to so increase the cost of actions as
virtually to discriminate against the poor.
[743] WRIGHT, _Report_, 162-64. In the whole country, during
the years 1867-86, 328,716 decrees were granted, representing
probably 484,683 petitions.
[744] In forty-five counties in twelve states, for the period
1867-86, notice was served by publication in 9,944 cases; in
17,040 cases personal service was made; and in 2,681 cases no
evidence on the point was obtainable: WRIGHT, _Report_, 201, 202.
[745] For a good discussion of the scope of various statutory
grounds of divorce, with the defenses, as actually interpreted
by the courts, see WHITNEY, _Marriage and Divorce_, 108-56; and
compare BISHOP, _Mar., Div., and Sep._, I, 610 ff., II, 1 ff.;
STEWART, _Law of Mar. and Div._, 203 ff.; LLOYD, _Law of Div._,
147 ff., 180 ff.; CONVERS, _Mar. and Divorce_, 180 ff.
[746] The ninety-nine illustrations of the allegations of the
plaintiff presented in WRIGHT'S _Report_, 172-78, constitute
very interesting reading. Some of them are quoted by BRYCE,
_Studies in Hist. and Jurisp._, 835, 836. The frauds arising in
the procedure are forcibly described by JUDGE JAMESON, "Divorce,"
_North Am. Rev._, CXXXVI, 323, 324; and the conflicts in laws by
PHILLIPS, "Divorce Question," _Internat. Rev._, XI, 139-52.
The appearance of the government report in 1889 revealed for the
first time something like the real facts regarding divorce in the
United States. In the entire country during the period of twenty
years (1867-86) covered by the report, 328,716 petitions for full
or partial divorce were granted. From 9,937 decrees in 1867, the
number rose to 11,586 in 1871, 14,800 in 1876, 20,762 in 1881,
and to 25,535 in 1886, showing an increase in twenty years of
157 per cent., while there was a gain in population of but 60
per cent. during the same period. Comparing the last year with
the first, only four states in the Union--Delaware, Connecticut,
Maine, and Vermont--show a decrease in the divorce rate; while,
more fairly, comparing the fourth quinquennium with the first,
only the three states last named show such a "decrease in their
divorce movement."[747] Of the whole number of divorces during the
twenty years, 112,540 were granted to the husband and 216,176 to
the wife. Among the principal causes, at each stage of the wedded
life, only for adultery were more decrees granted on the husband's
petition than on the wife's.[748] "As regards the ratio of divorces
to marriages, six states report marriages fully enough for a
trustworthy comparison. Of these, Connecticut has for the entire
period a divorce to 11.32 marriages and for the worst year, 1875,
one to 8.81; Rhode Island gives one to 11.11 for the period and one
to 9.36 in 1884, closely approaching that for the preceding years;
Vermont one to 16.96 for the period and at its worst, in 1871, one
to 13; Massachusetts gives one to 31.28 for the period, its worst
being one to 22.54 in 1878; Ohio averages one to 20.65, with an
almost unvarying progress downward to one to 15.16 in 1886;" and
in the District of Columbia the rate for the period is 31.28, while
at the best it is 74.65 in 1868 and at the worst 20.82 in 1877.
"In some other states where marriages are less fully reported, the
ratios are as follows: Illinois one to 14.76 for the period, while
Cook county gives one to 13.6; Michigan one to 12.92; Minnesota one
to 30.05; New Hampshire one to 9.74 (its lowest, one to 7.6 in 1880,
being evidently due to very imperfect returns of marriages); New
Jersey shows one to 49.39; Kansas one to 17.42; Wisconsin one to
21.07; and Delaware one to 36.99. These last, it should be noted,
are some of them for shorter periods than twenty years."[749] This
method of comparing the number of divorces granted with the number
of marriages celebrated is not very satisfactory. "It is vicious in
this, that the marriages celebrated each year cannot be compared
scientifically with the divorces drawn from the whole volume of
marriages celebrated in the past thirty or forty years, many of
which even took place in foreign countries."[750] The commissioner
has therefore adopted another method of comparison, not entirely
free from error, based on the estimated number of existing married
couples. From this it appears that in 1870, for the entire country,
there were 664 married couples to one divorce granted, while in 1880
the number of such couples to one decree had fallen to 481.[751]
Estimated another way, on the basis of the eleventh census, in 1867
there were 173 divorces to 100,000 couples and 250 in 1886.[752]
[747] WRIGHT, _Report_, 139-42.
[748] According to the table by classified causes: WRIGHT,
_Report_, 181-83. However, the relative number of divorces
granted on the wife's petition varies greatly among the states:
from 39.3 per cent. in North Carolina to 77.9 in Nevada: compare
the table in WILLCOX, _The Divorce Problem_, 34-37.
[749] DIKE, "Statistics of Marriage and Divorce," _Pol. Sci.
Quart._, IV, 607, summarizing the tables and figures in WRIGHT,
_Report_, 135-39.
[750] WRIGHT, _Report_, 137.
[751] _Ibid._, 147-49.
[752] WILLCOX, _The Divorce Problem_ (2d ed.), 16-19, and
Appendix.
The divorce rate in the United States is higher than in any other
country for which statistics are collected and published, with the
single exception of Japan,[753] being lowest in the southeastern
and highest in the western and southwestern states.[754] As in
Europe the divorce rate is higher and the marriage rate lower in
the cities than in the country.[755] Again, while the marriage rate
per capita of population is steadily descending, the divorce rate
is on the average rising, although the "North Atlantic group of
states, from Maine to Pennsylvania inclusive, shows no increase" in
the twenty years, the growth of divorce just keeping pace "with the
population."[756] For some of the western states the more recent
statistics are sufficiently startling. "Divorces in Ohio increased
from 2,270 in 1889 to 3,217 in 1899, and the ratio to marriages
has become 1 to 10.9. There were 2,418 divorces in Michigan in
the year 1900, or 1 to 9.6 marriages. Here about two-thirds of
the applications are granted. In some states three-fourths of the
suits are successful. In Michigan the statistics show that nearly
all the divorces are granted to residents of the state. Indiana
shows a remarkable change for the worse. Almost a generation ago
Indiana was notoriously bad. Then the laws were improved and her
divorce rate was no worse than that of some states in the east;
but for some unexplained reason divorces of late have increased
rapidly. In 1899 there were granted no less than 4,031 divorces, and
4,699 in the year 1900. In the last year the ratio of divorces to
marriages of the same year became 1 to 5.7 for the entire state,"
and 1 to 3.8 in the county of Marion containing Indianapolis.[757]
In Europe likewise the marriage rate is decreasing and the divorce
rate increasing, each in some countries with even greater rapidity
than on the average in the United States. Moreover, the growth of
divorce in recent years is a remarkable phenomenon in Catholic as
well as Protestant lands. Thus in the entire German Empire divorces
rose from 5,342 in 1882 to 6,677 in 1891, the population during
the same decade rising from 45,719,000 to 49,767,000. In Holland
there were together 271 divorces and separations in 1883 and 474 in
1892, the population at the same time advancing from 4,225,065 to
4,669,576. During the same ten years divorces in Sweden rose from
218 to 316, the population being 4,603,595 at the beginning and
4,806,865 at the end of the period. In this decade, the population
making but slight advance, the aggregate number of divorces and
separations in Switzerland decreased from 1,013 to 953. In France
for each 1,000 marriages celebrated 14 divorces were decreed in
1885 and 24 in 1891, the population showing a very small increase.
For the decennium beginning in 1884 and closing in 1893 the number
of divorces decreed in Belgium mounted from 221 to 497, while
the population grew from 5,784,958 to 6,262,272. During the same
period in Greece the number rose from 88 to 103. In Bavaria--like
Greece or Belgium a Catholic state--there is also a rapid growth
of divorce, the number of decrees advancing from 218 in 1882 to
308 in 1891, thus giving a rate of one divorce for 24,490 of the
population at the commencement as compared with 18,279 at the close
of the decade.[758] "In England divorces rose from 127 in 1860 to
390 in 1887, an increase much more rapid than that of population or
of marriages. Judicial separations rose between the same years from
11 to 50. In Scotland divorces which in 1867 numbered 32 had, in
1886, grown to 96, a still more rapid rise, as it covers only twenty
instead of twenty-seven years. It is worth noting that in England
it is usually the husband who petitions for a divorce, and almost
always the wife who seeks a judicial separation."[759]
[753] According to WILLCOX, "A Study in Vital Statistics," _Pol.
Sci. Quart._, VIII, 78, the "number of persons divorced (not
the number of divorces) to every 100,000 of the population" is
as follows for various countries, the date being 1886 unless
otherwise stated: Ireland, 0.28; Italy (1885), 3.75; England
and Wales, 3.79; Canada, 4.81; Australia (including New Zealand
and Tasmania), 11.14; German Empire, 25.97; France, 32.51;
Switzerland, 64.49; United States, 88.71; Japan, 608.45. "In the
year 1886," he adds, "there were in Japan 315,311 marriages and
117,964 divorces, more than one divorce to every three marriages
and more than four and a half times as many divorces as there
were in the United States, although the population of Japan was
only about two-thirds as great."
[754] WILLCOX, _op. cit._, 92-96.
[755] WRIGHT, _Report_, 158-63: WILLCOX, _op. cit._, 74,
75; BERTILLON, _Étude démographique du divorce_, 54-57; and
_Statistik der Ehescheidungen der Stadt Berlin_, vi, vii, showing
that for each 10,000 married persons living in Berlin in 1867
29.85 divorces were granted, while in 1894 the rate had risen to
37.93.
[756] WILLCOX, _op. cit._, 73 ff., 93 ff. _Cf._ WRIGHT, _Report_,
145, 146. Within this group the New England states show a small
decrease in the divorce rate; "while in New York, New Jersey,
and Pennsylvania as a whole it has slightly increased, the two
offsetting each other."
[757] DIKE, in _Rep. of Nat. League for Protection of the Family_
(1901), 6, 11. But in 1902, for the state, the ratio was 1
divorce to 7.6 marriages; _ibid._ (1903), 10.
In 1896 the number of marriages celebrated to one divorce granted
was 19.2 in Massachusetts, 15.7 in Vermont, 14.9 in Connecticut,
9.2 in Rhode Island, and only 8.3 in Maine. In 1901 the ratio in
Rhode Island had fallen to 8.2; while it had risen in Connecticut
to 15.8 and in Massachusetts to 20.2: _Registration Report_ (Me.,
1896), 91; _ibid._ (Vt., 1896), 96; DIKE in _Report_ (1901), 11.
In 1902 the number of marriages to one divorce was sixteen in
Massachusetts; 8.4 in Rhode Island; 10 in Vermont; and only about
six in Maine; while in 1901 it was 8.3 in New Hampshire: DIKE,
_op. cit._ (1903), 9, 10.
[758] For these facts see the parliamentary _Return of the
Number of Divorces in Foreign Countries_ (Part I, being Misc.
No. 4, 1895), 3-5, 8, 9, 10, 12, 15, 16. See also BERTILLON,
_Étude démographique du divorce_, 58 ff., 74 ff.; the table in
_Statistik der Ehescheidungen der Stadt Berlin_, vi, vii, giving
figures (1867-94) for German and other lands as well as for
the city; OETTINGEN, _Die Moralstatistik_, 134-62, _passim_;
RUBIN AND WESTERGAARD, _Statistik der Ehen_ (relating chiefly
to Denmark and particularly to Copenhagen); CADET, _Le mariage
en France_ (containing many statistical tables for marriage
and divorce); NAQUET, _Le divorce_ (giving two tables for
marriage and divorce, 1840-74); WOOLSEY, _Divorce and Divorce
Legislation_, 181-93; MUIRHEAD, "Is the Family Declining?"
_Internat. Jour. of Eth._, Oct., 1896, 33 ff.; MAYO-SMITH,
_Statistics and Sociology_, 101 ff., 124; WRIGHT, _Report_, 981
ff.; and the mass of marriage statistics in CAUDERLIER, _Les lois
de la population et leur application à la Belgique_.
[759] BRYCE, _Studies in Hist. and Jurisp._, 841.
It has long been observed that in Europe the marriage rate falls in
hard times and rises again on the return of prosperity. "According
to all experience," declares Mill, "a great increase invariably
takes place in the number of marriages in seasons of cheap food and
full employment."[760] The middle and upper classes, says Fawcett,
"do not often marry unless they have reasonable prospect of being
able to bring up a family in a state of social comfort.... But the
laborers, who form the majority of the population, are but slightly
influenced by such cautious foresight. Even a trifling temporary
improvement in their material prosperity acts as a powerful impulse
to induce them to marry; for it is a demonstrated statistical
fact that the number of marriages invariably increases with the
decline in the price of bread."[761] Farr and Bodio reach the same
conclusion.[762] Ogle on the other hand, while agreeing entirely
with these writers as to the favoring influence of prosperity and
the depressing effect of hard times on the number of marriages,
finds in England, so far as the price of bread alone is concerned,
that the reverse is true, more marriages there taking place among
the laboring class when bread is dear. In this case, he urges,
the higher cost of bread may itself be an incident of increased
industrial activity, depending in part on the rise of freight
charges on imported wheat. So he concludes that "the marriage rate
rises and falls with the amount of industrial employment, which
in its turn is determined by the briskness of trade, as measured
by the values of exports, which also rise and fall concomitantly,
and produce by their effect upon freights a simultaneous rise or
fall in the price of wheat."[763] The researches of Oettingen,
Bertillon, and especially those of Cauderlier, have also disclosed
a general variation in the marriage rate corresponding with the
rise or fall in the price of the necessaries of life.[764] War
in particular has a powerful influence in lowering the marriage
rate, while on the restoration of peace the loss may be largely
or entirely recovered. "In 1864 Denmark was at war with Prussia,
and its marriage rate fell from 15.0 to 11.13" for each 1,000
inhabitants, "the lowest point it has ever yet reached, but in the
next year, the war being over, rose to 17.8, and was higher than it
has ever been again. In 1866 Austria was at war with Prussia, and,
while the Prussian rate fell from 18.2 to 15.6, the Austrian rate
fell from 15.5 to 13.0, but on the cessation of hostilities rose
in 1867 to 19.3, a higher level than in any earlier year."[765]
According to Willcox,[766] the same rule appears to hold good in the
United States. In Massachusetts for the period 1850-90 the marriage
rate was low in the years of industrial depression and during the
Civil War. Furthermore, the same writer has for the first time
demonstrated that the average divorce rate for the whole country is
affected in the same way, sinking in hard times and rising again
on the restoration of business. Represented graphically, the curve
for the Massachusetts marriages and the curve for United States
divorces (1867-86), with slight exceptions, "uniformly ascend and
descend together and reach their maxima and minima in the same
years. Depressions in trade have had a tendency to decrease divorces
as well as marriages;" whereas in England, while the marriage rate
falls the divorce rate rises in hard times. But in that country
divorce is notoriously very expensive and hence mainly a luxury
for the rich. So it is concluded that "this difference between the
effect of hard times in England and in the United States, together
with the very rapid increase of divorce among the southern negroes,
and the fact that only about one wife in six of those obtaining
divorces receives any alimony, are among the indications that
divorce has become very frequent and perhaps most frequent among
our lower middle classes, and has reached for weal or woe a lower
stratum than perhaps anywhere in Europe."[767]
[760] MILL, _Prin. of Pol. Econ._ (Boston, 1848), I, 413.
[761] FAWCETT, _Manual of Pol. Econ._ (4th ed., London, 1874),
143.
[762] BODIO, _Del Movimento della populazione in Italia e in
altri stati d'Europa_ (1876), 136, 137; FARR, _Vital Statistics_,
68-75; and _idem_, in _Report of the Registrar General_:
quoted by OGLE, "On Marriage Rates," etc., _Jour. of the Royal
Statistical Society_, LIII, 254 ff. _Cf._ NEWSHOLME, _Vital
Statistics_, 45, 46.
[763] OGLE, _op. cit._, 256-63. CAUDERLIER, _Les lois de la
population_, 71-74, 113, 114, has also shown in the case of
England that foreign commercial relations must be considered in
determining the condition of material well-being.
[764] OETTINGEN, _Die Moralstatistik_, 89-94, and authorities
there cited; BERTILLON, _Annales de démographie internationale_,
I, 24; CAUDERLIER, _op. cit._, 61-78, 102 ff., giving statistics
for Germany, Belgium, England, and France. _Cf._ MAYO-SMITH,
_Statistics and Sociology_, 100, 101.
[765] OGLE, _op. cit._, 255; _cf._ OETTINGEN, _op. cit._, 93, 94.
[766] WILLCOX, "A Study in Vital Statistics," _Pol. Sci. Quart._,
VIII, 76, 77. _Cf._ _idem_, "The Marriage Rate in Michigan,"
_Pub. Am. Stat. Assoc._, IV, 7; and CRUM, "The Marriage Rate in
Massachusetts," _ibid._, 328, 329.
[767] WILLCOX, _loc. cit._, 76, 77, 79-82. On the increase of
divorce among the southern negroes see _idem_, _The Divorce
Problem_, 21-23, 29-32.
Whether the number of divorces is directly influenced by legislation
is a question which has given rise to decided difference of opinion.
Bertillon, writing in 1883 in favor of the new divorce law of
France then under consideration, took the position that statutes
extending the number of causes of divorce or relaxing the procedure
in divorce suits have little influence "upon the increase in the
number of decrees."[768] Yet, for obvious reasons, he predicted
that the first, though not the lasting, result of a change in the
law allowing absolute divorce instead of mere separation would be
the opposite of this conclusion. Such, in fact, was the case. In
1883 there were 3,010 separations; while, after the new code took
effect, 4,478 divorces and separations were granted in 1884, 6,245
in 1885, and 6,211 in the following year.[769] Only a part of this
can be accounted for by the change in law, for there had been a
rapid increase during the preceding fifty years.[770] For the
United States this point has been examined by Professor Willcox,
and his results go to show that the difference in the divorce rate
existing among the states cannot very largely be accounted for by
the difference in the number of grounds of petition sanctioned by
the respective statutes. Thus in 1880 New York admitted one cause,
New Jersey two causes, and Pennsylvania four; yet on the average
in that year for each 100,000 married couples New York was granting
81 divorces, New Jersey 68, and Pennsylvania 111.[771] "This means
that more divorces for adultery are granted in New York, relatively
to population, than for adultery and desertion in New Jersey, and
almost as many as for adultery, desertion, cruelty, and imprisonment
in Pennsylvania. Assume the number of married couples in the three
states in 1875 to be a mean between the estimates for 1870 and 1880,
and compare with this mean the total number of divorces for adultery
in the three states for the twenty years. Pennsylvania had annually
16 such divorces to 100,000 couples, New Jersey had 26, and New York
78. Judging from the court records, one would say that adultery was
about three times as frequent in New York as in New Jersey, and
about five times as frequent as in Pennsylvania. No such inference
is warranted. The true conclusion is that limiting the causes
increases the number of divorces in those which remain, but without
materially affecting the total number. A certain proportion of the
married couples in the three states desired divorce, and was willing
to offer the evidence required in order to obtain the decree. The
number of causes, then, seems to have affected the grounds urged
for divorce, but in no large degree the total number."[772] It is
possible that this conclusion is somewhat too emphatic. The problem
is very complex, and it is hard to make allowance for all its
conditions. For example, it should not be forgotten that New Jersey
has but one tribunal, the court of chancery, authorized to grant
divorce, whereas New York has many; and if states sanctioning a
wider range of causes were selected for comparison, the result might
be changed, though scarcely to any wide extent.
[768] BERTILLON, _op. cit._, 20-28, 88-102; WRIGHT, _Report_, 150.
[769] See table in WRIGHT, _Report_, 145.
[770] See the table in BOTTET, _La famille_, 47 ff. His figures
do not agree with those quoted from WRIGHT'S _Report_: According
to his table, 3,010 separations were granted in 1883; 3,790
separations and divorces in 1884; 4,640 in 1885; 6,270 in 1886;
7,983 in 1887; and 7,430 in 1888. Compare KELLER, "Divorces in
France," _Procds. of the Am. Stat. Assoc._, I, 469 ff., who
summarizes TURQUAN, _Résultats statistiques de cinq années de
divorce_. See also "Divorce: from a French Point of View," _North
Am. Rev._, CLV, 721-30, by NAQUET, author of the law of 1884; and
the vigorous criticism of BRUN, "Divorce Made Easy," _ibid._,
CLVII, 11-17. In 1897, 7,460 divorces were decreed; while in
1900 there were only 7,157; DIKE, _Rep. of the Nat. League for
Protection of the Family_ (1903), 11.
[771] WILLCOX, _The Divorce Problem_, 37, 38.
[772] _Ibid._ (2d ed.), 45, 46; WRIGHT, _Report_, 148, 169.
Commissioner Wright has attempted to discover the general influence
of legislation by examining every change in the laws during
twenty years in connection with the divorce statistics. Often a
sudden increase, and occasionally a slight decrease, in the rate
is observed without any alteration in the statutes. In fourteen
instances, however, he believes it "quite apparent that the lines of
statistics are curved in accordance with laws enacted just previous
to the curves."[773] The changes effected by these laws are of many
kinds, including the addition and repeal of causes and various
alterations in the procedure, some of them complex. But under
careful scrutiny in some instances the statistics reveal no certain
causal relation between the change in the divorce rate and the
antecedent change in the statute. Indeed, in the light of Professor
Willcox's detailed criticism of the figures, four of Mr. Wright's
test cases must be rejected, so far as evidence afforded by the
statistics is concerned;[774] four or five others show considerable
influence of legislation; while in the rest that influence is
slight, temporary, or questionable.[775] Contrary to the popular
opinion, restrictions upon the remarriage of divorced persons would
not affect in a large degree the divorce rate, although only foreign
statistics are available to test the point. These show that within
the first two or three years after dissolution of marriage divorced
men are not much more inclined to remarry than are widowers, while
during the same period a considerably greater number of divorced
women than widows renew the nuptial ties.[776] With an increasing
rate, which does not advance uniformly, it is perhaps impossible
to measure exactly the effects of lax or restrictive legislation.
The divorce movement is dependent upon social forces which lie far
beyond the reach of the statute-maker. Yet it seems almost certain
that there is a margin, very important though narrow, within which
he may wisely exert a restraining influence. Good laws may, at any
rate, check hasty impulse and force individuals to take proper time
for reflection. They may also by securing publicity prevent manifold
injustice in the granting of decrees.
[773] WRIGHT, _Report_, 150 ff.
[774] Including the repeal in 1878 of the celebrated Connecticut
"omnibus clause" introduced in 1849. On the alleged influence
of this clause see DIKE, "Facts as to Divorce in New England,"
in _Christ and Modern Thought_, 197-202; _idem_, "Some Aspects
of the Divorce Problem," _Princeton Review_, March, 1884, 170,
171; and especially LOOMIS, "Divorce Legislation in Conn.," _New
Englander_, XXV, 436 ff., 441, 442, giving a table of Connecticut
divorces by counties, 1849-65; and ALLEN, "Divorce in New
England," _North Am. Rev._, CXXX, 547 ff., giving statistics for
the period 1860-78.
[775] For example, Massachusetts created four new causes of
divorce in 1870; and in 1873 reduced the time of desertion
necessary to constitute a ground of divorce from five to three
years. Divorces increased from 337 in 1872 to 611 in 1874. A part
of this gain was probably due to the change in law, although
in all the entire group of north Atlantic states there was at
the same time a large increase which cannot be thus accounted
for. The lax law of residence in Utah previous to 1878, and the
reduction of the term of desertion from two years to one by the
Dakota legislature in 1881, were each responsible for an increase
in the divorce rate: compare WRIGHT, _Report_, 152 ff., 156, 203
ff.; WILLCOX, _A Study in Vital Statistics_, 85-90; _idem_, _The
Divorce Problem_, 41-61; with the criticism of DIKE, "Legislation
and Divorce," _New York Eve. Post_, July 2, 1891.
[776] See BERTILLON, _Note pour l'étude statistique du divorce_,
464 ff., 471-73, giving Berlin statistics for 1878 which show
that divorced men remarry within the first three years at about
the same rate as widowers, while divorced women remarry more
rapidly than widows. The results obtained from Swiss statistics
are nearly the same: see the table in BERTILLON, "Du sort des
divorcés," _Jour. de la société de statistique de Paris_, June,
1884; reproduced by WILLCOX, _The Divorce Problem_, 27. On the
other hand, OETTINGEN, _Die Moralstatistik_, 153-62, on the
basis of statistics for Saxony (1834-49) and the Netherlands
(1850-54), shows a strong tendency to remarry on the part of
divorced persons of either sex, as compared with widows and
widowers, the divorced women remarrying much more frequently than
the men. DIKE, _Rep. of the Nat. Div. Ref. League_ (1891), 18,
gives some facts for Connecticut. In 1889, 286 divorced persons
were married, "135 men and 151 women, which is a little above
one-third of the number divorced in the year. In 1890 there were
477 divorces granted, or 954 individuals divorced: and there
were 350 divorced persons"--143 men and 207 women--"who married
again." To be of much value these figures should be compared
with the number of marriages of widowers and widows for the same
period.
After all, in this fact do we not catch a glimpse of the proper
sphere of divorce legislation? Divorce is a remedy and not the
disease. It is not a virtue in a divorce law, as appears to be often
assumed, to restrict the application of the remedy at all hazards,
regardless of the sufferings of the social body. If it were always
the essential purpose of a good law to diminish directly the number
of _bona fide_ divorces, the more rational course would be to
imitate South Carolina and prohibit divorce entirely. Divorce is not
immoral. It is quite probable, on the contrary, that drastic, like
negligent, legislation is sometimes immoral. It is not necessarily
a merit, and it may be a grave social wrong, to reduce the legal
causes for a decree to the one "scriptural" ground. The most
enlightened judgment of the age heartily approves of the policy of
some states in extending the causes so as to include intoxication
from the habitual use of strong drinks or narcotics as being equally
destructive of connubial happiness and family well-being. Indeed,
considering the needs of each particular society, the promotion
of happiness is the only safe criterion to guide the lawmaker in
either widening or narrowing the door of escape from the marriage
bond. The divorce movement is a portentous and almost universal
incident of modern civilization. Doubtless it signifies underlying
social evils vast and perilous. Yet to the student of history it is
perfectly clear that this is but a part of the mighty movement for
social liberation which has been gaining in volume and strength ever
since the Reformation. According to the sixteenth-century reformer,
divorce is the "medicine" for the disease of marriage. It is so
today in a sense more real than Smith or Bullinger ever dreamed
of; for the principal fountain of divorce is bad matrimonial laws
and bad marriages. Certain it is that one rises from a detailed
study of American legislation with the conviction that, faulty
as are our divorce laws, our marriage laws are far worse; while
our apathy, our carelessness and levity, regarding the safeguards
of the matrimonial institution are well-nigh incredible. Indeed,
there has been a great deal of misdirected and hasty criticism of
American divorce legislation. Even thoughtful scholars sometimes
indulge in the traditional arraignment. The laws of the American
states produced since 1789, declares Bryce, present "the largest
and the strangest, and perhaps the saddest, body of legislative
experiments in the sphere of family law which free self-governing
communities have ever tried."[777] Such sweeping assertions are
in many ways misleading and fail to advance the solution of the
divorce problem. There is, of course, in the aggregate a "large"
body of statutes; for each of the fifty-three commonwealths, on
this subject as on all others, has a separate code; but the harm
resulting either from the bulk or the perplexity of the laws, while
needing a remedy, is not so serious as is commonly assumed. More
and more in their essential features the divorce laws of the states
are duplicating each other; and there is already ground for hope
that in reasonable time they may attain to practical uniformity.
Furthermore, it may well be questioned whether the complexity or the
conflict in the American codes is so pronounced as in the numerous
systems of divorce law maintained in the states of the German Empire
until the enactment of the imperial code of 1900. In some cases in
German lands the law was obscure and well-nigh past finding out.
Prussia alone had three different systems; and Bavaria was in the
same plight.[778] If American legislation is on the average more
liberal in extending the enumerated grounds of divorce, it would
surely be rash to assume that it is the "sadder" on that account.
The question is: Has American social liberalism, in this regard as
in so many other respects, increased the sum of human happiness?
Besides, "laxity" in this connection is not exclusively a feature
of American legislation. It may be reasonably doubted whether any
"omnibus clause" in the country gives wider discretion to the court
than the fourth of the five causes sanctioned by the new uniform law
of Germany, allowing divorce when "either spouse has been guilty
of grave violation of the obligations based on the marriage or of
so deeply disturbing the marital relation through dishonorable or
immoral behavior that the continuance of the marriage cannot be
expected from the other."[779] Even broader provisions formerly
existed in the codes of some of the separate German states, and may
still be found elsewhere in Europe.
[777] BRYCE, _Studies in Hist. and Jur._, 830.
[778] See WRIGHT, _Report_, 1030, 1033 ff.
[779] "Wenn der andere Ehegatte durch schwere Verletzung der
durch die Ehe begründeten Pflichten oder durch ehrloses oder
unsittliches Verhalten eine so tiefe Zerrüttung des ehelichen
Verhältnisses verschuldet hat, dass dem Ehegatten die Fortsetzung
der Ehe nicht zugemuthet werden kann."--_Reichsgesetzbuch_, Tit.
7, § 1568. For discussion see KOHLER, _Das Eherecht des bürg,
Gesetzbuchs_, 42-46.
But the statistics seem to show that the law is conservatively
administered. The number of divorces is decreasing. "For the
years 1891-95, inclusive, the annual average was 7,258. In
1896 there were 8,601; in 1897 there were 9,005; in 1898 there
were 9,143; and in 1899 they had become 9,563. But under the
new law in 1900 they dropped to 8,934, and in 1901 they were
8,037."--DIKE, _Report_ (1903), 8, 9, on the authority of the
Chief of the Statistical Bureau of Berlin.
The other grounds of divorce allowed by the imperial statute are
adultery, attempt on the life of either spouse by the other,
malicious desertion, and insanity (Geisteskrankheit) of three
years' standing. Divorce for malicious desertion is decreed only
after a preliminary suit for the re-establishment of marital
relations and a year's delay to allow the deserter to return to
conjugal duty: _Reichsgesetzbuch_, Tit. 7, § 1567.
The achievement of a wisely conceived and carefully drafted uniform
law for the entire country, would be of great advantage, although
it might not directly cause a very great decrease in the average
divorce rate, and certainly would not produce the same rate for
the individual states.[780] How may such a uniform law be secured?
The method of procuring the enactment of a federal law under a
constitutional amendment--once much in favor[781]--has for the
present been almost abandoned by active workers. Instead, it is
preferred, through the state commissions on uniform legislation, to
urge the adoption of a model statute by the separate commonwealths.
These commissions, now thirty-five in number, have prepared a
bill for a law governing divorce procedure; and its temperate and
practical provisions ought to gain its general adoption.[782]
All this is well; but it is still more needful to strive for a
common marriage law. In the end it may be found necessary, under
a constitutional amendment, to appeal to the federal power. What
service could a national legislature render more beneficent than the
creation of a code embracing every division of the intricate law of
marriage and divorce? Aside from its educational value as a moral
force, such a code in material ways would prove a powerful guaranty
of social order and stability.
[780] The uniform divorce law for the Swiss cantons, which went
into effect in 1876, has not tended to produce a uniform rate.
In 1885, for instance, Appenzell, Outer Rhodes, "has forty-nine
times as much divorce as Unterwalden o. d. W., while with all
the divergences of law in this country the differences of rate
are much less."--WILLCOX, _The Divorce Problem_, 59, giving a
table of the decrees granted in the twenty-six cantons, 1876-85;
compiled from _Die Bewegung der Bevölkerung in der Schweiz im
Jahre 1885_ (Beilage I).
[781] DIKE, "Uniform Marriage and Divorce Laws," _Arena_, II,
399-408, gives a valuable discussion of the two methods of
procedure. See also BENNETT, "National Divorce Legislation,"
_Forum_, II, 429-38; STEWART, "Our Mar. and Div. Laws," _Pop.
Sci. Monthly_, XXIII, 232, 233; and JAMESON, "Divorce," _North
Am. Rev._, CXXXVI, 325, all favoring a constitutional amendment;
also NORTH, "Uniform Mar. and Div. Laws," _ibid._, CXLIV,
429-31; LLOYD, _Law of Divorce_, 269 ff.; JOHNSON, _Remarks upon
Uniformity of State Legislation_; SNYDER, _Problem of Uniform
Legislation_, 3 ff., favoring state action. In his _Geography
of Marriage_, 182 ff., SNYDER favors concert of action among
the states and a prohibitory amendment restricting or defining
the maximum number of causes for divorce which a state might
sanction. See also the articles by STANWOOD AND STANTON mentioned
in the Bibliographical Index, IV; and consult the _Reports of the
Conferences of the State Boards of Commissioners for Promoting
Uniformity of Legislation in the U. S._
[782] See _Reports of the Nat. League for the Protection of the
Family_ (1900), 7; (1901), 8.
In the meantime it is essential to fix the attention upon causes
rather than effects. For the wise reformer, who would elevate and
protect the family, the center of the problem is marriage and not
divorce.
II. THE FUNCTION OF EDUCATION
It is needful in the outset, as already suggested, frankly to accept
marriage and the family as social institutions whose problems must
be studied in connection with the actual conditions of modern social
life. It is vain to appeal to ideals born of old and very different
conditions. The guiding light will come, not from authority,
but from a rational understanding of the existing facts. Small
progress can be expected while leaning upon tradition. The appeal
to theological criteria is, no doubt, matter of conscience on the
part of many earnest men. Nevertheless the vast literature which
seeks to solve social questions through the juggling with ancient
texts seems in reality to be largely a monument of wasted energy.
Much of it is sterile, or but serves to retard progress or to befog
the issue. Witness the perennial discussion of the "scriptural"
grounds of divorce, or of the Levitical sanction or condemnation of
marriage with a deceased wife's sister! Witness the vapid homilies
and treatises on the wedded life! There is, in truth, urgent need
that the moral leaders of men should preach actual instead of
conventional social righteousness. It is high time that the family
and its related institutions should be as freely and openly and
unsparingly subjected to scientific examination as are the facts of
modern political or industrial life.
From the infancy of the human race, we have already seen, the
monogamic family has been the _prevailing_ type. There have been,
it is true, many variations, many aberrations, from this type
under diverse conditions, religious, economic, or social. Under
changing influences the interrelations of the members of the
group--of husband and wife, of parent and child--and their relations
individually and collectively to the state, have varied from age
to age or from people to people. There have been wife-capture,
wife-purchase and the _patria potestas_. But in essential
character--at first for biological, later for ethical or spiritual
reasons--the general tendency has always been toward a higher,
more clearly differentiated type of the single pairing family.
Moreover, setting aside all question of special priestly sanctions,
the healthiest social sentiment has more and more demanded that the
"pairing" should be lasting. Whether of Jew or gentile, the highest
ideal of marriage has become that of a lifelong partnership. Are
these tendencies to remain unbroken? Is the stream of evolution
to proceed, gaining in purity and strength? Are marriage and the
family doomed; or are they capable of adaptation, of reform and
development, so as to satisfy the higher material and ethical
requirements of the advancing generations? Seemingly they are
now menaced by serious dangers. Some of them have their origin
in the new conditions of a society which is undergoing a swift
transition, a mighty transformation, industrially, intellectually,
and spiritually; while others, perhaps the more imminent, are
incident to the institutions themselves as they have been shaped or
warped by bad laws and false sentiments. Apparently, if there is
to be salvation, it must come through the vitalizing, regenerative
power of a more efficient moral, physical, and social training of
the young. The home and the family must enter into the educational
curriculum. Before an adequate sociological program can be devised
the facts must be squarely faced and honestly studied. In the sphere
of domestic institutions, even more imperatively than in that of
politics or economics, there is need of light and publicity.
The family, it is alleged, is in danger of disintegration through
the tendency to individualism which in many ways is so striking a
characteristic of the age.[783] Within the family itself there are,
indeed, signs that a rapid transition from status to contract is
taking place in a way which Maine scarcely contemplated; for he
appears to have imagined that precisely in this sphere the process
was already virtually complete. The bonds of paternal authority
are becoming looser and looser. In America in particular young
men and even young women earlier than elsewhere tend to cut their
parental moorings and to embark in independent business careers. So
also more and more clearly the wife is showing a determination to
escape entirely from _manu viri_--still sustained by the relics of
mediæval law and sentiment--and to become in reality as well as in
name an equal partner under the nuptial contract. The state also has
intervened to abridge the parental authority. Minor children are
no longer looked upon as the absolute property of the father. For
the purpose of education, society removes them for a considerable
part of the period of nonage from home and immediate parental
control; and, on the other hand, it forbids their employment in
mines, factories, or other injurious vocations during their tender
years. Under child-saving laws they may even be removed from home,
when they are cruelly treated or exposed to vicious influences,
and placed under the protection of the state. Thus, little by
little, to use the phrase of a thoughtful writer, the original
"coercive" powers of the family under the patriarchal _régime_ have
been "extracted" and appropriated by society. In the education of
the young the family retains the lesser part. "The state has here
interfered in the private ordering of the household by taking the
child from its parents for one-third of its waking hours, and has
introduced order and system into the training of children, together
with the assertion of rights on their part. The family becomes
therefore less a coercive institution, where the children serve
their parents, and more a spiritual and psychic association of
parent and child based on persuasion. A more searching interference
on the part of the state, together with a new set of governmental
organizations for its enforcement, is found in the boards of
children's guardians, the societies for the prevention of cruelty
to children, orphans' asylums, state public schools, with their
investigating and placing-out agents, empowered under supervision
of the courts to take children away from parents and to place
them in new homes. A large part of the unlimited coercion of the
_patria potestas_ is here extracted from the family and annexed to
the peculiar coercive institution where it is guided by notions
of children's rights, and all families are thereby toned up to
a stronger emphasis on persuasion as the justification of their
continuance."[784] Here we catch a glimpse of the direction of
future evolution in the family. At the same time it appears that
the disintegration of paternal and marital coercive power is not a
serious menace to the family. It has cleared the way for a higher
and nobler spiritual domestic life. The real danger is that the
family and the home will surrender an undue share of their duty and
privilege to participate in the culture and training of the young.
This function for the good of society may be vastly developed,
though mainly on new lines bearing directly on the nature of
marriage and the family. Of this function some further mention will
presently be made.
[783] PEABODY, "The Teaching of Jesus Concerning the Family,"
in his _Jesus Christ and the Social Question_, 129 ff.; DIKE,
"Problems of the Family," _Century_, XXXIX, 392, 393; _idem_,
_Some Aspects of the Divorce Question_, 177 ff.; _idem_, _Perils
of the Family_; MULFORD, _The Nation_, 276-83; BUSHNELL, "The
Organic Unity of the Family," in his _Christian Nurture_, 90-122;
HENDERSON, _Social Elements_, 71 ff.; ALLEN, "Divorces in New
England," _North Am. Rev._, CXXX, 559 ff.; POTTER, "The Message
of Christ to the Family," in his _Message of Christ to Manhood_;
SALTER, _The Future of the Family_; MATHEWS, "The Family," _Am.
Journal of Sociology_, I, 457-72; PEARSON, "The Decline of the
Family," in his _National Life and Character_, 227 ff.; and the
reply of MUIRHEAD, "Is the Family Declining?" _Int. Jour, of
Ethics_, Oct., 1896, 33 ff.; ROSS, _Social Control_, 405, 433.
The ablest appreciation of the value of individualism is that of
MILL, _On Liberty_ (2d ed.), 100 ff.
[784] COMMONS, "The Family," in his "Sociological View of
Sovereignty," in _Am. Jour. of Sociology_, V, 683 ff., 688,
689. On the future of the family compare SPENCER, _Principles
of Sociology_, I, 737 ff., 788; LETOURNEAU, _L'évolution du
mariage_, 444 ff.; PEARSON, "The Decline of the Family," in his
_National Life and Character_, 255, 256; MUIRHEAD, "Is the Family
Declining?" _Int. Jour. of Ethics_, Oct., 1896, 53-55; TILLIER,
_Le mariage_, 283 ff., 316.
More threatening to the solidarity of the family is believed to
be the individualistic tendencies arising in existing urban and
economic life.[785] With the rise of corporate and associated
industry comes a weakening of the intimacy of home ties. Through the
division of labor the "family hearth-stone" is fast becoming a mere
temporary meeting-place of individual wage-earners. The congestion
of population in cities is forcing into being new and lower modes
of life. The tenement and the "sweating system" are destructive of
the home. Neither the lodging-house, the "flat," nor the "apartment"
affords an ideal environment for domestic joys. In the vast hives
of Paris, London, or New York even families of the relatively
well-to-do have small opportunity to flourish--for self-culture and
self-enjoyment. To the children of the slum the street is a perilous
nursery. For them squalor, disease, and sordid vice have supplanted
the traditional blessings of the family sanctuary. The cramped,
artificial, and transient associations of the boarding-house are a
wretched substitute for the privacy of the separate household.[786]
For very many men club life has stronger allurements than the
connubial partnership. Prostitution advances with alarming speed.
For the poor, sometimes for the rich, the great city has many
interests and many places more attractive than the home circle. The
love of selfish indulgence and the spirit of commercial greed, not
less than grinding penury, restrain men and women from wedlock.
Yet the urban environment has also the opposite effect. In the
crowded, heterogeneous, and shifting population of the great
towns marriages are often lightly made and as lightly dissolved.
Indeed, the remarkable mobility of the American people, the habit
of frequent migration, under the powerful incentives of industrial
enterprise, gold-hunting, or other adventure, and under favor of the
marvelously developed means of swift transportation, will account
in no small degree for the laxity of matrimonial and family ties
in the United States. May not one gather courage even from this
untoward circumstance? Assuredly the present thus clearly appears to
be an age of transition to a more stable condition of social life.
Furthermore, the perils to the family of the kind under review need
not be fatal. They are inherent mainly in economic institutions
which may be scientifically studied and intelligently brought into
harmony with the requirements of the social order. Already in great
municipal centers, through improved facilities for rapid transit,
the evils resulting from dense population are being somewhat
ameliorated. Of a truth, every penny's reduction in street-railway
fares means for the family of small means a better chance for
pure air, sound health, and a separate home in the suburbs. The
dispersion of the city over a broader area at once cheapens and
raises the standard of living. Every hour's reduction in the period
of daily toil potentially gives more leisure for building, adorning,
and enjoying the home.
[785] _Cf._ PEABODY, _Jesus Christ and the Social Question_,
162-79; MUIRHEAD, _Is the Family Declining?_ 35.
[786] In the great centers of Germany, we are assured, the
family of the blood-kindred has yielded to the family composed
of kindred and strangers. For lack of space in the closely
packed districts people are forced to live almost in common:
GÖHRE, _Drei Monate Fabrikarbeiter_, 12 ff., 37 ff. _Cf._
BEBEL, _Die Frau und der Sozialismus_, 123, 124; and RADE, _Die
sittlich-religiöse Gedankenwelt unserer Industriearbeiter_, 117
ff.; STEWART, _Disintegration of the Families of the Workingmen_;
HENDERSON, _Social Elements_, 73.
To the socialist the monogamic family in its present form is
decidedly a failure. "To those who would substitute common ownership
for industrial liberty, the institution of the family presents one
of the most persistent obstacles. Domestic unity is inconsistent
with the absolute social unity vested in the state."[787] The larger
social body must be composed of individual members, free and equal;
and it will not tolerate within itself a smaller body with special
group-interests of its own, much less with any vestige of coercive
authority over its constituent parts. There must be no _imperium
in imperio_. Writers like Engels[788] seek consolation and support
in Bachofen's theory of a universal stage of mother-right before
the monogamic family with the institution of private property had
brought domestic slavery into the world. They "hold that the
monogamic family is a relic of decaying civilization. All ideas
on which it rests, the subordination and dependence of women, the
ownership of children, the belief in the sacredness of marriage as a
divine institution, above all respect for the individual ownership
of property and the rights of inheritance as permanent elements in
our social organization--have been undermined. The foundations are
sapped and the superstructure is ready to topple in."[789]
[787] PEABODY, _op. cit._, 140.
[788] See ENGELS, _Der Ursprung der Familie_, 4 ff.; and his
follower, BEBEL, _Die Frau und der Sozialismus_, 1 ff., 93 ff.
[789] MUIRHEAD, _Is the Family Declining?_ 37.
Woman in particular has been the devoted victim of the greed of
individual possession upon which the monogamic family rests. "Far
back in history," according to Edward Carpenter, "at a time when in
the early societies the thought of inequality had hardly arisen, it
would appear that the female, in her own way--as sole authenticator
of birth and parentage, as guardian of the household, as inventress
of agriculture and the peaceful arts, as priestess and prophetess
or sharer in the councils of the tribe--was as powerful as man in
his, and sometimes even more so. But from thence down to today what
centuries of repression, of slavehood, of dumbness, of obscurity
have been her lot!"[790]
[790] CARPENTER, _Love's Coming of Age_; quoted from MUIRHEAD,
_op. cit._, 37. The views of various socialists regarding woman
and marriage are criticised by HERTZBERG, _Der Beruf der Frau_,
43-57.
Under socialism, declare Morris and Bax, marriage and the family
will be affected "firstly in economics and secondly in ethics. The
present marriage system is based on the general supposition of
economic dependence of the woman on the man, and the consequent
necessity of his making provision for her." In the new social order
this degrading condition must disappear. "Property in children
would cease to exist, and every infant that came into the world
would be born into full citizenship, and would enjoy all its
advantages, whatever the conduct of its parents might be. Thus a
new development of the family would take place, on the basis, not
of a predominant life-long business arrangement, to be formally and
nominally held to, irrespective of circumstances, but on mutual
inclination and affection, an association terminable at the will of
either party." Thus a higher morality would be sanctioned. There
would be no "vestige of reprobation for dissolving one tie and
forming another."[791]
[791] MORRIS AND BAX, _Socialism: Its Growth and Outcome_, 299,
300.
A similar demand for liberty is made by Laurence Gronlund.
Economically "the coming commonwealth" will place woman "on an equal
footing with man." But she will be "equal," not "alike;" for in the
new society the sexes will no longer be free industrial competitors,
but each will have its special vocation. Physiological differences
will not be ignored. "Woman will become a functionary, she will
have suitable employment given her, and be rewarded according to
results, just the same as men." Like men she will have suffrage,
not as a right or a privilege, but as a trust. "The new order
will necessarily, by the mere working of its economic principles,
considerably modify" the marriage relation; and "is that relation
such an ideal one now, that it would be a sacrilege to touch it?
Is marriage not now, at bottom, an establishment for the support
of woman? Is not maintenance the price which the husband pays for
the appendage to himself? And because the supply generally exceeds
the demand--that is, the effective demand--has woman not often
to accept the offer of the first man who seems able to perform
this pecuniary obligation?" If it be objected that this is taking
"rather a commercial view" of the "holy" relation, is not, "as
a matter of fact, marriage regarded by altogether too many as a
commercial institution? Do not, in fact, the total of young women
form a matrimonial market, regulated by demand and supply?" "Now the
Co-operative Commonwealth will dissipate this horror," enabling
every healthy adult man and woman to find a mate. Thus, contrary
to false charges, socialists are not trying to destroy the family:
"they want to enable every man and woman to form a happy family!"
Modern democracy revolts against the patriarchal constitution of
the family, upon whose model all feudal and ancient societies were
organized. In the "very nature of things family-supremacy will
be absolutely incompatible with an interdependent, a solidaric,
commonwealth; for in such a state the first object of education
must be to establish in the minds of the children an indissoluble
association between their individual happiness and the good of
all."[792]
[792] GRONLUND, _The Co-operative Commonwealth_, 193-206.
The manifold social evils which take their rise directly or
indirectly in marriage as it is--be the actual causes what they
may--have always justly aroused the unsparing criticism of
socialistic writers. Thus to Robert Owen--whose pure life was
unreservedly and courageously devoted to the social good, as he
understood it--marriage was a member of his "trinity of causes of
crime and immorality among mankind."[793] With almost the fanatical
zeal of an apostle of a new religion, he railed at the "single"
family.[794] He proclaimed the glad tidings of the swift approach of
the new moral order. Then "the imaginative laws of the marriages of
the priesthood must be among the first to be abolished, by reason of
their extended injurious influence upon human nature, poisoning all
the sources of the most valuable qualities which Nature has given to
infant man. These marriages have dried up the fountain of truth in
human nature; they perpetually insinuate that man can love and hate
at his pleasure, and that to be virtuous he must live according to
the dictates of the laws and ceremonies devised by the priesthood,
that he must hate according to the same dictation, and that if
he does not thus love and hate, he is vicious, and he will be
eternally punished in another world," while on earth he will suffer
from the human laws and by the public opinion which priests have
inspired.[795] Under the new moral order all this will be changed.
Marriages will be more lasting than now. "Every individual will be
trained and educated, to have all his powers cultivated in the most
superior manner known; cultivated too under a new combination of
external objects, purposely formed, to bring into constant exercise
the best and most lovely qualities only of human nature." Wealth for
all will be "produced in superfluity." Therefore all will be "equal
in their education and condition," and without any distinction
except as to age. "There will be then no motive or inducement for
any parties to unite, except from pure affection arising from the
most unreserved knowledge of each other's character.... There will
be no artificial obstacles in the way of permanent happy unions of
the sexes; for ... the affections will receive every aid which can
be devised to induce them to be permanent;" and the wedded pair
"will be placed as far as possible in the condition of lovers during
their lives." In "some partial instances," however, happiness might
not even thus be secured. In such event, "without any severance
of friendship between the parties, a separation may be made, the
least injurious to them and the most beneficial to the interests of
society."[796] In fine, Robert Owen's book, although often vague
in expression and violent in tone, contains in its statements,
and still more in its suggestions, practically the whole program
of later socialistic writings on the subject of marriage and the
family, except the argument based on historical evolution.[797]
[793] OWEN, _Marriages of the Priesthood of the Old Immoral
World_, 54: "I resume the subject of marriage because it is
the source of more demoralization, crime, and misery, than any
other single cause, with the exception of religion and private
property; and these three together form the great trinity of
causes of crime and immorality among mankind." For examples
of the bitter denunciations which Owen's doctrines naturally
provoked see the tract of BRINDLEY, _The Marriage System of
Socialism_ (Chester, 1840); and that of BOWES, _The 'Social
Beasts'_ (Liverpool, 1840).
[794] For examples see _Marriages of the Priesthood_, 41, 43, 44,
81.
[795] OWEN, _op. cit._, 81.
[796] _Ibid._, 86, 87, giving an extract from his six lectures
delivered at Manchester in 1837.
[797] Owen's book was written in 1835, just before the passage
of the new civil-marriage law; and the violence of its tone may
in part have been provoked by the injustice and intolerance
sanctioned by the Hardwicke act of 1753, at that time in force.
In 1840 he declared, as regards the _form_ of marriage, that the
law of 1836 had "exactly" met his "ideas and wishes;" and that
all which he then desired was "to see another law enacted, by
which _Divorces_, under wise arrangements, and on principles of
common sense, may be obtained equally for rich and poor."--_Op.
cit._, 90. He himself outlines marriage and divorce laws which
possess some excellent features: _ibid._, 88-90.
Robert Dale Owen followed in his father's footsteps. He finds even
the Haytian institution of "placement"--an informal union made and
dissolved at the pleasure of the contracting persons--far superior
in its morality and its stability to the sacramental marriage which
exists by its side.[798]
[798] ROBERT DALE OWEN, "Marriage and Placement," _Free
Inquirer_, May 28, 1831; and his letter to Thomas Whittemore,
editor of the Boston _Trumpet_, May, 1831; both quoted by BESANT,
_Marriage_, 23, 24, 26, 27. The _Free Inquirer_ was founded in
New York city by Robert Dale Owen and Frances Wright in 1829:
JOHNSON, _Woman and the Republic_, 121.
August Bebel, in his able book on _Woman and Socialism_, draws a
powerful indictment of matrimonial relations under the existing
order. To this source, in his view, may be traced the prevalence
of sexual crimes and the most dangerous tendencies now threatening
the integrity of society. Infanticide, abortion, and prostitution;
the decline in the birth and marriage rates; the increase in the
number of divorces; the subjection of woman--all these, he says,
are due mainly to the influence of the present "coercive marriage."
This is so because that "marriage is an institution bound up in the
closest way with the existing social order and with it must stand
or fall." Coercive marriage is the creature of economic conditions,
the "normal marriage" of the present bourgeois society; and with
that society it is already in process of disruption. "Since all
these unnatural conditions, being especially harmful to woman, are
grounded in the nature of the bourgeois society and are growing
with its duration, that society is proving itself incapable of
remedying the evil and of emancipating woman. Another social
order is therefore needful for this purpose." In the new state,
economically and socially, woman will be entirely independent. She
will no longer be the subject of authority and of exploitation; but,
free and equal by man's side she will become "mistress of her own
destiny."[799]
[799] BEBEL, _Die Frau und der Sozialismus_, 93 ff., 175, 176,
427 ff., 431; or the same in WALTHER'S translation, 43 ff., 229
ff. Compare KARL PEARSON'S discussion of "Socialism and Sex" in
his _Ethic of Free Thought_, 427-46; and CAIRD, _Morality of
Marriage_, 123-27.
Whatever may be thought of the remedy suggested by socialistic
writers, whether or not our only hope lies in the co-operative
commonwealth, it is certain that they have rendered an important
public service. They have earnestly studied and set forth the
actual facts. With unsparing hand they have laid bare the flaws in
our domestic institutions as they really exist. They have clearly
proved that the problems of marriage and the family can be solved
only by grasping their relations to the economic system. They have
shown that progress lies along the line of the complete emancipation
of woman and the absolute equality of the sexes in marriage. In
accomplishing all this they have in effect done much to arouse in
the popular mind a loftier ideal of wedded life.
The liberation of woman in every one of its aspects profoundly
involves the destiny of the family. It signifies in all the larger
activities of life the relative individualization of one-half of
human kind. This means, of course, a weakening of the solidarity
of the family group, so far as its cohesion is dependent on
the remnants of mediæval marital authority. Will the ultimate
dissolution of the family thus become the price of equality and
freedom? Or rather, is it not almost certain that in the more
salubrious air of freedom and equality there is being evolved a
higher type of the family, knit together by ties--sexual, moral,
and spiritual--far more tenacious than those fostered by the régime
of subjection? How remarkable, in England as well as in America, is
the revolution already accomplished! Few facts in social history
are more instructive than the change which has taken place in the
tone of the literature dealing with woman and her relations to
marriage and the family. In the eighteenth century and until far
down into the nineteenth it is for the most part utterly frivolous
or sentimental. Vapid satire abounds. Erotic or facetious verse at
the expense of the "fair sex" or "wedded love" finds ready popular
response. Even in what is meant for earnest discussion woman is
treated as a helpless being, to be petted, cajoled, or corrected,
not too harshly, by her superior lord; or else she is edified with
endless lectures on the sacred duty of guarding her virtue--a fact
which throws a lurid and unintentional light on the moral standards
of the age. Imagine an _Essay on Old Maids_,[800] tediously spun
out in three volumes; or a book like Eliza Haywood's _Female
Spectator_,[801] which, although in four volumes, had already
reached its seventh edition in 1771.
[800] _A Philosophical, Historical, and Moral Essay on Old Maids,
by a Friend of the Sisterhood_ (London, 1785). Some of the
gleanings from history in the second and third volumes are not
entirely devoid of permanent interest.
[801] HAYWOOD, _The Female Spectator_ (7th ed., London, 1771).
This is a fairly representative compilation of gossip and
literary anecdote regarding woman, but without a trace of
sociological perception.
For examples of the lighter productions referred to see _An
Essay on Marriage, in a cautionary Epistle to a Young Gentleman,
wherein the Artifices and Foibles of the Fair_, etc. (London,
1750); _The Deportment of a Married Life: Laid down in a
Series of Letters ... to a Young Lady ... lately Married_
(2d ed., London, 1798; 3d ed., 1821); _Boone_, _The Marriage
Looking-Glass: written as a Manual for the Married and a Beacon
to the Single_ (London, 1848); GUTHRIE, _Wedded Love_ (London,
1859), a volume of sentimental verse. Some of them have a pious
or theological tone: _The Advantages and Disadvantages of the
Married State ... under the Similitude of a Dream_ (5th ed.,
London, 1760); _Conjugal Love and Duty_ (4th ed., Dublin and
London, 1758); _Reflections on Celibacy and Marriage, in Four
Letters to a Friend_ (London, 1771); SANDEMAN, _The Honour of
Marriage opposed to all Impurities_ (London, 1777); BEAN, _The
Christian Minister's Affectionate Advice to a New Married Couple_
(4th ed., London, 1809). Others contain valuable passages, while
vividly reflecting the contemporary view regarding woman's
inferior position: "Philogamus," _The Present State of Matrimony_
(London, 1739); _The Art of Governing a Wife; with Rules for
Batchelors_ (London, 1747).
Nevertheless, the beginning of an efficient agitation for woman's
rights was then made. As early as 1696 appeared Mary Astell's
vigorous _Defense of the Female Sex_, further developing views
which she had expressed two years earlier.[802] The next year
Defoe, advocating an "academy for women," made a strong plea for
the equal education of the sexes.[803] A singularly clear and
incisive exposure of the _Hardships of the English Laws in relation
to Wives_ was published in 1735. The writer, apparently a woman,
while protesting that her adversaries for want of arguments resort
to "points of wit, smart jests, and all-confounding laughter,"
presents many striking proofs from judicial annals and elsewhere to
show that in England the "estate of wives is more disadvantageous
than slavery itself;" that they "may be made prisoners for life at
the discretion of their domestick governors;" and that they "have no
property, neither in their own persons, children, or fortunes."[804]
In 1739 an anonymous writer, signing herself "Sophia," produced a
forceful _Vindication of the natural Right of the Fair-Sex to a
perfect Equality of Power, Dignity, and Esteem with the Men_, in
which, appealing to "rectified reason," she urged that difference
in sex relates to the "propagation of human nature," whereas in
"soul there is no sex," and diversity must therefore come from
education and environment.[805] Mary Wollstonecraft's better known
and much more elaborate _Vindication of the Rights of Woman_,[806]
published in 1792, was therefore not without helpful predecessors.
But it is immensely superior to them in its literary power and
its intellectual grasp. The fearless, direct, and unaffected way
in which the subject is handled, especially the questions of sex
and education, discloses the dawn of a new era of discussion. More
clearly than ever before the liberation of woman appears as a
sociological problem of the greatest moment to mankind. True, much
space is devoted to combating objections which may now seem trivial;
but to the average mind of Mary Wollstonecraft's day they were by no
means trivial, and they had to be cleared away before the full light
could come in.
[802] ASTELL, _An Essay in Defense of the Female Sex_ (London,
1696; 3d ed., 1697). _Cf._ her _Serious Proposal to the Ladies_
(London, 1694; 3d ed., 1697); and her _Reflections upon Marriage_
(London, 1700; 4th ed., 1730).
[803] DEFOE, _An Essay upon Projects_ (London, 1697).
[804] _The Hardships of the English Laws in relation to Wives_
(London, 1735), 4 ff.
[805] "SOPHIA," _Woman not Inferior to Man; or, A short and
modest Vindication of the natural Right of the Fair-Sex to a
perfect Equality of Power, Dignity, and Esteem with the Men_
(London, 1739; 2d ed., 1740). This tract was answered by a
"GENTLEMAN," _Man Superior to Woman; or, a Vindication of Man's
Natural Right of Sovereign Authority over the Woman_ (London,
1739), insisting that woman was not created at all, but is "a
sort of after-produced being" who must not "presume to call in
question the great duty of vassalage" to man, under penalty of
the withdrawal of his heart from her power. To this "SOPHIA"
rejoined in _Woman's Superior Excellence over Man_ (London, 1740).
[806] A new edition of this book, with an introduction by
MRS. FAWCETT, appeared in London in 1890. _Cf._ PENNELL, "A
Century of Women's Rights," _Fort. Rev._, XLVIII, 408 ff.;
RAUSCHENBUSCH-CLOUGH, _A Study of Mary Wollstonecraft and the
Rights of Woman_; OSTROGORSKI, _The Rights of Women_, 40;
RICHTER, _Mary Wollstonecraft die Verfechterin der "Rechte der
Frau."_
The foundations were thus laid upon which, chiefly during the last
half-century,[807] a vast literary superstructure--controversial,
historical, and scientific--has been erected; a many-sided
literature worthily embodying the thought of a great transitional
stage in social progress. The opponents of woman's liberation have
been forced to choose new weapons. Satire and mockery are no longer
in vogue. Both sides are very much in earnest. The tone of present
discussion is nothing if not serious. Moreover, while the battle
for sexual equality in the family and in the state is very far from
being yet fought out, the ultimate victory seems already assured.
[807] In Germany DOROTHEA CHRISTINE ERXLEBEN, in her _Gründliche
Untersuchung der Ursachen, die das weibliche Geschlecht vom
Studium abhalten_ (Berlin, 1742); _Vernünftige Gedanken vom
Studiren des schönen Geschlechts_ (Frankfort and Leipzig, 1749);
and HIPPEL, _Bürgerliche Verbesserung der Weiber_ (Berlin,
1792); followed by his _Nachlass über weibliche Bildung_
(Berlin, 1801), were already beginning the agitation for woman's
liberation. A remarkably clear and incisive essay in defense
of woman, entitled _De l'égalité des deux sexes_, appeared in
Paris in 1673. CONDORCET, _Lettres d'un bourgeois de New Haven à
un citoyen de Virginie_ (1787) compressed into a few sentences
the basic arguments for the movement. In the same year appeared
MARY WOLLSTONECRAFT'S _Thoughts on the Education of Daughters_,
a forerunner of her _Vindication_ five years later. During the
next fifty years a few earnest champions of woman's freedom came
forward. First was MARY ANNE RADCLIFFE, _Female Advocate, or an
attempt to recover the Rights of Women from Male Usurpation_
(London, 1799); followed by HANNAH MATHER CROCKER, _Observations
on the Real Rights of Women_ (Boston, 1818); WILLIAM THOMPSON
AND MRS. WHEELER, _Appeal ... of Women_ (London, 1825), a book
written in reply to a statement in JAMES MILL'S article on
_Government_, and possibly influencing John Stuart Mill's later
thoughts on the subject; SARAH M. GRIMKE, _Letters on Equality
of the Sexes_ (Boston, 1838); LADY SYDNEY MORGAN, _Woman and her
Master_ (London, 1840); MRS. ELLIS, _Woman's Rights and Duties_
(London, 1840). The movement took organic form in 1848, when the
first convention was held at Seneca Falls, New York. This was
followed in 1850 by conventions in Ohio and Massachusetts. In
1851 MRS. JOHN STUART MILL'S powerful article in the July number
of the _Westminster Review_ on the "Enfranchisement of Women"
supplied the agitation with a definite program. See FAWCETT, _The
Woman Question in Europe_, 273, note; STANTON, ANTHONY, AND GAGE,
_Hist. of Woman Suffrage_, I, 70 ff.; OSTROGORSKI, _Rights of
Women_, 54 ff.; JOHNSON, _Woman and the Republic_, 39 ff.; WADE,
_Women, Past and Present_, 247.
It would, indeed, be very strange if some incidental harm should
not result from the veritable revolution in the condition of
American women which little more than a generation has produced.
This is the inevitable penalty which social progress has always to
pay. Yet in the present case the transitional loss to the family
or to the larger social body is exceedingly slight compared even
with the immediate gain. This is especially true of woman's new
intellectual life with all its manifold activities. It matters
not whether she is showing herself mentally man's equal. If any
justification of her new rôle were needed it might suffice to affirm
that she has precisely the same right as man to free and unhampered
self-development in whatever direction and in whatever manner she
herself shall find most conducive to her happiness. But it is amply
justified by its social results. It cannot be seriously doubted that
woman's admission to equal privilege of higher education is enabling
her better to share with man in doing the world's work. Besides, in
spite of the vain imaginings of misogynistic philosophers,[808]
the problem of special sexual function in its relation to mental
capacity is being settled in woman's favor. "Science," declares
Lourbet, in completing his valuable survey, "is incapable of
demonstrating the 'irremediable' mental inferiority of woman.... The
pretended antagonism between mental power and sexual power, which
does not withstand rigorous analysis, appears definitively to be
destroyed by experience, by the tangible facts which incessantly
strike the eye."[809] Herbert Spencer reaches the conclusion that
"were liberties to be adjusted to abilities, the adjustment, even
could we make it, would have to be made irrespective of sex."[810]
[808] According to HARTMANN, _The Sexes Compared_, 3, 6 ff.,
there is between man and woman a fundamental and irremovable
distinction: The woman rules sexually and therefore "we must, by
way of compensation, uphold the legal superiority of man." In
establishing sexual equality the progress of culture receives
a severe blow. More wonderful is the teaching of SCHOPENHAUER.
"Women," he says, "are directly adapted to act as the nurses
and educators of our childhood, for the simple reason that they
themselves are childish, foolish, and short-sighted--in a word
are big children all their lives, something intermediate between
the child and the man, who is a man in the strict sense of the
word."--_On Women_: in DIRCKS'S _Essays of Schopenhauer_, 65; or
his _Sämmtliche Werke_, III, 649 ff.
[809] LOURBET, _La femme devant la science contemporaine_, 157,
161. See especially BEBEL, _Die Frau und der Sozialismus_, 233 ff.
[810] SPENCER, _Justice_, 186. For an elaborate discussion of
woman's mental capacity see MILL, _Subjection of Women_, 91-146.
It is singular what acute anxiety is felt by adherents of the
old régime[811] lest woman's new intellectual life should prove
disastrous to her physical constitution, unmindful of the fact
that even now for the majority of married women the burdens of the
orthodox "natural sphere" are far more harmful. The tables are
decidedly turned by a radical writer who with truth declares that
"evidence is rapidly accumulating which makes it almost impossible
to deny that the feminine constitution has been disastrously injured
during the long ages of patriarchal rule, and that this beloved
'sphere' of woman, where she was thought so safe and happy, has,
in fact, been a very seed-bed of disease and misery and wrong;"
that "through these ages of overstrain of every kind--physical,
emotional, nervous--one set of faculties being in perpetual activity
while the others lay dormant, woman has fallen into a state that is
more or less ailing and diseased; that upon her shoulders has been
laid the penalty of the injustice and selfishness of men."[812]
Even if the participation of woman in the mental activities and
the public vocations which men have hitherto monopolized should
prove harmful to her, has she not a right to discover the fact by
experience? "I consider it presumptuous," said John Stuart Mill in
the outset of the organized emancipation movement, "in anyone to
pretend to decide what women are or are not, can or cannot be by
natural constitution. They have always hitherto been kept, as far as
regards spontaneous development, in so unnatural a state that their
nature cannot but have been greatly distorted and disguised, and no
one can safely pronounce that if woman's nature were left to choose
its direction as freely as men's, and if no artificial bent were
attempted to be given to it except that required by the conditions
of human society, and given to both sexes alike, there would be
any material difference, or perhaps any difference at all, in the
character and capacities which would unfold themselves."[813]
[811] For example, see DR. STRAHAN, "The Struggle of the Sexes:
its Effect upon the Race," _Humanitarian_, III (Nov., 1893),
349-57; replying to an article entitled "Sex Bias" in the same
journal for July of that year; EDSON, "Women of Today," _North
Am. Rev._, CLVII, 440-51; who is criticised by ICHENHAEUSER, _Die
Ausnahmestellung Deutschlands in Sachen des Frauenstudiums_, 8
ff.; an article entitled "'Woman's Rights' Question Considered
from a Biological Point of View," _Quart. Jour. of Sci._, XV,
469-84; which is effectually disposed of by WARD, "Our Better
Halves," _Forum_, VI, 266-75. Ward is attacked by ALLEN, "Woman's
Place in Nature," _Forum_, VII, 258-63. ROMANES, "Mental
Differences of Men and Women," in _Pop. Sci. Monthly_, XXXI,
383-401, takes a conservative or intermediate position. A liberal
view is held by BROOKS, "The Condition of Women Zoölogically,"
_ibid._, XV, 145 ff., 347 ff.; and by WHITE, "Woman's Place in
Nature," _ibid._, VI, 292-301.
[812] CAIRD, _Morality of Marriage_, 13, 174, 175.
[813] Quoted by CAIRD, _op. cit._, 14. For a trenchant discussion
of this point compare MILL, _Subjection of Women_, 38-52, 111
ff., _passim._
It is vain for "scientific optimism" to seek in "nature" a
justification for woman's sexual subjection. "Independently ...
of its false facts and false premises, this pretended scientific
defense of the undue inequality of the sexes in man is fundamentally
unsound in resting upon a thoroughly false assumption, which is
only the more pernicious because widely prevalent. It assumes that
whatever exists in nature must be the best possible state.... The
only practical use to which we put science is to _improve upon
nature_, to control all classes of forces, social forces included,
to the end of bettering the conditions under which we inhabit the
earth. This is true civilization, and all of it."[814]
[814] WARD, _Dynamic Sociology_, I, 662.
The fear that the education of woman, in connection with her growing
economic independence, will prove harmful to society through her
refusal of matrimony or maternity appears equally groundless.
According to Dike, "the demand for her enfranchisement, either
as a right or on the ground of expediency, grows out of this way
of treating her as an individual whose relations to society are
less a matter of condition and more of personal choice. And this
principle is carried into a sphere entirely her own. A partial
loss of capacity for maternity has, it is said, already befallen
American women; and the voluntary refusal of its responsibilities
is the lament of the physician and the moralist."[815] It is true
that the birth-rate is falling.[816] So far as this depends upon
male sensuality, a prevalent cause of sterility; upon selfish love
of ease and luxury--of which men even more than women are guilty;
or upon the disastrous influence of the present extremes of wealth
and poverty--of which women as well as men are the victims--it is a
serious evil which may well cause us anxiety; but so far as it is
the result of the desire for fewer but better-born children--for
which, let us hope, the advancing culture of woman may in part be
responsible--it is in fact a positive social good.[817] It is true
also that, while fewer and fewer marriages in proportion to the
population are taking place, men as well as women are marrying later
and later in life.[818] Here again, for the reasons just mentioned,
the results are both good and bad. Certain it is that early
marriages and excessive child-bearing have been the twin causes
of much injury to the human race. "To the superficial observer,"
declares a writer very conservative as to the effects of woman's
emancipation, "it may appear that every marriage must enrich the
state, and that early marriages must lessen the amount of sexual
immorality, but inquiry will prove conclusively how fallacious are
those views. Early marriages certainly tend to the production of
large families, but then a family, to be a source of wealth to the
state, must at least be self-supporting, which is exactly what the
feeble, degenerate children of the great mass of our early marriages
are not. They are brought forth ill-developed and unhealthy; their
immature, improvident parents are unable to either feed or educate
them as they ought to be fed and educated; hence, instead of being a
source of wealth to the state, they prove a serious drain upon her
resources. A large percentage of these miserable children succumb
during infancy, but a great number drag out a pitiful existence,
only to become inmates of our workhouses and infirmaries, our
asylums and prisons, and, after being supported at the public
expense for a longer or shorter period, to die prematurely, leaving
the state poorer than they found it and no better. It is indeed a
small percentage of the children of the immature that ever become
robust useful, self-supporting citizens."[819]
[815] DIKE, "Some Aspects of the Divorce Question," _Princeton
Rev._, March, 1884, 180. Compare ALLEN, "The New England Family,"
_New Englander_, March, 1882, 146 ff.; CREPAZ, _Die Gefahren der
Frauen-Emancipation_, 24 ff.
[816] KUCZYNSKI, "Fecundity of the Native and Foreign Born Pop.
of Mass.," _Quart. Jour. of Economics_, XVI, 1-36; CRUM, "The
Birth-Rate in Mass.," _ibid._, XI, 248-65; DUMONT, "Essai sur le
natalité en Mass.," _Jour. de la soc. stat. de Paris_, XXXVIII
(1897), 332-53, 385-95; XXXIX (1898), 64-99; MOLINARI, "Decline
of the French Population," _Jour. of the Royal Stat. Soc._, LIII,
183-97; MAYO-SMITH, _Statistics and Sociology_, 67 ff.; USSHER,
_Neo-Malthusianism_, 137-64; EDSON, "Women of Today," _North Am.
Rev._, CLVII, 446 ff.
[817] Sometime, it is to be hoped, society may seriously
take in hand the problem of restraining the propagation of
criminals, dependents, and the other unfit: see WARNER, _American
Charities_, 132, 133.
[818] WILLCOX, "A Study of Vital Statistics," in _Pol.
Sci. Quart._, VIII, 76, 77; OGLE, "On Marriage-Rates and
Marriage-Ages," _Jour. of the Royal Stat. Soc._, LIII, 272 ff.;
KUCZYNSKI, "Fecundity of the Native and Foreign Born Pop. in
Mass.," _Quart. Jour. of Economics_, XVI, 1-36; MAYO-SMITH,
_Statistics and Sociology_, 103 ff., 124; CRUM, "The Marriage
Rate in Mass.," _Pub. of Am. Stat. Assoc._, IV, 331 ff.; WALLACE,
"Human Selection," _Fort. Rev._, XLVIII, 335 ff.
[819] STRAHAN, _Marriage and Disease_, 245 ff., giving
statistics. _Cf._ EDSON, "The Evils of Early Marriages," _North
Am. Rev._, CLVIII, 230-34; USSHER, _Neo-Malthusianism_, 213
ff.; WALLACE, "Human Selection," _Fort. Rev._, XLVIII, 333 ff.;
LEGOUVÉ, _Hist. morale des femmes_, 74-84.
It is not marriage or maternity which educated women are shunning;
but they are declining to view marriage as their sole vocation or
to become merely child-bearing animals. Let us not worry about the
destiny of college women.[820] It is simply wrong wedlock which
they are avoiding. They have, suggests Muirhead, a careful regard
for the "kind" of marriage. They are determined to have only "the
genuine article." They "look in marriage not only for the old
fashioned 'union of hearts,' but for the union of heart and head in
some serious interest which will survive the mere attractions of
sex and form a solid bond of union even in the absence of others
which, like the birth of children, depend on fortune." So "far from
being hostile" to the family, "they are only preparing the way for
a purer and more beneficent form of family life." The "maternal
instinct is happily not confined to the uneducated."[821] The rise
of a more refined sentiment of love has become at once a check and
an incentive to marriage.[822][820] See especially the excellent
paper of MARY ROBERTS SMITH, "Statistics of College and Non-College
Women," _Pub. of the Am. Stat. Assoc._, VII, 1-26, whose conclusions
support the view taken in the text; and SIDGWICK, _Health Statistics
of Women Students of Cambridge and Oxford and Their Sisters_
(Cambridge, 1890), who reaches similar general results. _Cf._
THWING, "What Becomes of College Women?" _North Am. Rev._, CLXI,
546-53, taking a very favorable view of the influence of higher
education on woman in her domestic relations; and SHINN, "The
Marriage Rate of College Women," _Century_, L, 946-48. Consult also
the articles of F. M. ABBOTT, C. S. ANGSTMAN, G. E. GARDNER, and F.
FRANKLIN mentioned in the Bibliographical Index, IV; and read CLARA
E. COLLET'S "Prospects of Marriage for Women," _Nineteenth Century_,
XXXI, 537-52.
[821] MUIRHEAD, "Is the Family Declining?" _Int. Jour. of
Ethics_, Oct., 1896, 47-50.
[822] There are many reasons why all persons do not marry. Among
these is a loftier ideal of love. "Persons often live single a
whole life-time because they are unable to obtain the only one
in the world for whom they can ever experience a throb of pure
passion.... We see then that this more diffused and elevated form
of love becomes at once the greatest incentive and the greatest
barrier to marriage. It differs wholly from the localized passion
in being _selective_. While it is less selfish, it must be called
out by, and exclusively directed toward, one definite object.
From this circumstance it may be called the _objective_ form of
love."--WARD, _Dynamic Sociology_, I, 626.
Long ago Mrs. John Stuart Mill explained how essential are knowledge
and equality to render woman the real companion of man in the
struggle for existence; how the subjection and ignorance of the wife
degrade not only her own character, but that of the husband as well.
"There is hardly any situation more unfavorable to the maintenance
of elevation of character, or force of intellect, than to live in
the society, and seek by preference the sympathy, of inferiors in
mental endowments."[823]
[823] MRS. MILL, "Enfranchisement of Women," _Westminster
Review_, July 1851; or _Dissertations and Discussions_, III, 117,
118. "While far from being expedient, we are firmly convinced,
that the division of mankind into castes, one born to rule over
the other, is in this case, as in all cases, an unqualified
mischief; a source of perversion and demoralization, both to the
favored class and to those at whose expense they are favored;
producing none of the good which it is the custom to ascribe to
it, and forming a bar, almost insuperable while it lasts, to
any really vital improvement, either in the character or in the
social condition of the human race."--_Ibid._, 101. _Cf._ MR.
MILL'S masterly discussion of the relative effects of equality
and inequality in marriage, in _Subjection of Women_, 53-90, 146
ff.
If woman's even partnership with man in the nurture of the family
and in facing the exigencies of external life depends mainly on
equal education, never was such education more urgently required
than at the present hour. Social and industrial problems are
constantly demanding higher and higher mental training for their
solution. The same is true of the problem of the family. It is very
largely a question of reform and development in home education.
Clearly, then, husband and wife have great need of intelligent
sympathy and counsel in the discharge of their joint, yet partially
differentiated, tasks. Hence, it should be the high function of
public education to promote this healthy companionship in social
duty. Furthermore, American experience appears to show that it can
best do so by training young men and women together. Indeed, in this
regard the sociological value of coeducation is very important.
Theoretically it seems reasonable to assume that those who are to
work together in later life may gain some advantage by spending the
years of study side by side. The practical result of coeducation in
the western states, where it has been given the freest opportunity,
appears to demonstrate that such is actually the case. The majority
of those who have had extended experience, after making all due
allowance for special difficulties to be surmounted, are emphatic in
their opinion that mentally and morally both sexes are the gainers
by it, as compared with training in separate institutions.[824]
It is true that eventually marriages very often result from such
associations. That is precisely the gist of the matter. Are not the
conditions entirely favorable to the fostering of happy unions?
Under what better auspices can attachments be formed than when
young men and women are learning to gauge each other's character
through the varied social and intellectual rivalries of the years of
scholastic life?
[824] "Yet coeducation wisely managed is almost indispensable
to the training of noble men and women; for education in its
broadest sense takes account of all the influences that go to
form character. It is not wholly intellectual, but is moral
and social, and can best be carried forward, under a proper
_régime_, where young men and women are educated and trained
together."--LIVERMORE, _What Shall We Do with Our Daughters?_ 44
ff. _Cf._ KUHNOW, _Frauenbildung und Frauenberuf_, 7 ff.; and
especially WOLLSTONECRAFT, _Vindication of the Rights of Woman_,
361 ff., 381-413.
Educational equality, however, is but one aspect of the movement for
woman's liberation. There are other factors of the ideal partnership
of the sexes in the uplifting of society. Intellectual emancipation
is proceeding, and necessarily must proceed, hand in hand with
political and economic emancipation. The three movements are in
large measure blended and interdependent. The participation of
woman in the new vocations--industrial, artistic, professional, or
administrative--implies a great advance in mental training. It means
a distinct unfoldment of faculties and character. "No sociological
change equal in importance to this clearly marked improvement of
an entire sex has ever taken place in one century."[825] It is a
revolution in which one-half of the human race is becoming an equal
factor with the other in intellectual and economic production. At
last woman is gaining a share in the social consciousness; she is
entering into the social organization as a new and regenerative
force. Doubtless, in the process of readjusting new functions and
conditions to the old some temporary harm may ensue. Yet happily
the alarm is subsiding lest by her entrance on the new vocations
woman should permanently wreck her physical constitution, refuse to
marry, or cause industrial disaster through over-competition.[826]
With far greater justice a century ago it was complained that the
"intrusion of men-traders" into woman's work was driving her to
destitution and thus fostering the "social evil."[827] The callings
into which women are charged with "intruding" were, many of them,
women's callings before they were men's.
[825] STETSON, _Women and Economics_, 151. On the woman
labor question see the very enlightening discussion of OLIVE
SCHREINER, "The Woman's Movement of Our Day," _Harper's Bazar_,
XXXVI (1902), 3-8, 103-7, 222-27; and her "Woman Question,"
_Cosmopolitan_, XXVIII (1899-1900), 45-54, 182-92, emphasizing
the danger of woman's "sex-parasitism," through her economic
dependence. Compare GÜNTHER, _Das Recht der Frau auf Arbeit_, 6
ff.
[826] The hardships which women as well as men endure under the
present industrial conditions have little connection with their
economic emancipation. "What some call a woman's movement for
industrial liberty is not quite what it is claimed to be. It
is largely an incident in the movement of property, which is
seeking its own ends, caring very little for either sex or age.
In order to find an easier place under the common industrial
yoke that rests upon the neck of every individual, women seek
more and more employments. But it is not so much womanhood as it
is property that is the real impelling cause."--DIKE, "Problems
of the Family," _Century_, XXXIX, 392. _Cf._ LEGOUVÉ, _Hist.
morale des femmes_, 366-90; GRAFFENRIED, "The Condition of
Wage-Earning Women," _Forum_, XV, 68 ff.; EDSON, "American Life
and Physical Deterioration," _North Am. Rev._, CLVII, 440 ff.,
referring to the alleged evil effects of woman's new activities;
DILKE, "Industrial Position of Women," _Fort. Rev._, LIV, 499
ff., discussing the condition of factory workers; PHILLIPPS,
"The Working Lady in London," _ibid._, LII, 193 ff.; BREMNER,
"The Financial Dependence of Women," _North Am. Rev._, CLVIII,
382 ff., protesting against regarding the economic "dependence
of the wife as degradation;" and COLLET, "Official Statistics on
the Employment of Women," _Jour. of the Stat. Soc._, LXI, 216-60.
MRS. MILL, "Enfranchisement of Women," _Dissertation_, III, 109
ff., effectually disposes of the objection based on the alleged
effects of woman's industrial competition with men. _Cf._ the
elaborate discussion of BEBEL, _Die Frau und der Sozialismus_,
202 ff.
[827] MARY ANNE RADCLIFFE, _The Female Advocate_ (London, 1799).
A petition of women to Louis XVI. in 1789 prays "that men may
not ply the trades belonging to women, whether dressmaking,
embroidery, or haberdashery. Let them leave us, at least the
needle and the spindle, and we will engage not to wield the
compass or the square."--OSTROGORSKI, _The Rights of Women_, 26,
27; following LEFAURE, _Le socialisme pendant la révolution_, 122.
It is within the family itself that the growing economic
independence of woman is producing the highest sociological
results. Under the old domestic régime on both sides of the sea
the woman who married entered legally, potentially, upon a life of
financial bondage. In the theory of the common law the wife, with
her children, her goods, and the fruits of her toil, was the sole
property of the husband. Only in 1886 did the mother in England
gain legal capacity for the partial custody of her offspring;[828]
and in but few of the American states has she been placed on equal
footing with the father in this regard.[829] Even now the "husband
in England can claim damage from the man who has ruined his family
life, but the woman can claim none from the rival who has supplanted
her."[830] In both England and the United States notable progress
has already been made in equalizing the property rights of the
sexes; but the process is yet far from complete. The prevailing
conception of marriage as a status in which the wife is "supported"
by the husband is degrading in its influence on the woman's
character. It tends to deaden her moral perceptions and to paralyze
her mental powers. Girls are trained, or they are forced by
poverty, to look upon wedlock as an economic vocation, as a means of
getting a living. The result is that under the old order marriage
tends to become a species of purchase-contract in which the woman
barters her sex-capital to the man in exchange for a life-support.
The man--not the woman as originally--has become the chooser in
sex-selection. In the family, therefore, the sex-motive has become
excessively pronounced, thrusting into the background higher social
and spiritual ideals.[831] The liberation movement thus means in
a high degree the socialization of one-half of the human race.
Woman declines longer to be restricted to the dwarfing environment
of sexual seclusion; and demands the means and the privilege of
engaging in the larger activities of self-conscious society.[832]
[828] By the Custody of Infants Act, 1886: see the discussion of
CAIRD, _Morality of Marriage_, 49, 55 ff.
[829] BISHOP, _Marriage, Div., and Sep._, II, 452 ff.
[830] PEARSON, "The Decline of the Family," in his _National Life
and Character_, 240, 234, 235. In many of the American states the
wife may bring action against the seducer of her husband: BISHOP,
_Mar., Div., and Sep._, I, 568.
[831] This fact is seized upon in one of the most powerful books
produced in recent sociological discussion. According to Mrs.
Stetson "we are the only animal species in which the female
depends on the male for food, the only animal species in which
the sex-relation is also an economic relation. With us an entire
sex lives in a relation of economic dependence upon the other
sex." The wife may toil unceasingly; but the labor which she
"performs in the household is given as a part of her functional
duty, not as employment." She is therefore not her husband's
"business partner;" for as an intended equivalent for what she
gets she contributes neither labor nor capital nor experience
nor even motherhood. She contributes her sex-attractions.
Sex-distinctions are therefore excessively developed; and the
"sexuo-economic relation" becomes inevitable. "By the economic
dependence of the human female upon the male, the balance of
forces is altered. Natural selection no longer checks the action
of sexual selection, but coöperates with it;" for "man, in
supporting woman, has become her economic environment." Under
"sexual selection the human creature is of course modified to
its mate, as with all creatures. When the mate becomes also the
master, when economic necessity is added to sex-attraction,
we have the two great evolutionary forces acting together to
the same end; namely, to develop sex-distinction in the human
female. For, in her position of economic dependence in the
sexual relation, sex-distinction is with her not only a means
of attracting a mate, as with all creatures, but a means of
getting a livelihood, as is the case with no other creature under
heaven. Because of the economic dependence of the human female
on her mate she is modified to sex to an excessive degree. This
excessive modification she transmits to her children; and so is
steadily implanted in the human constitution the morbid tendency
to excess in this relation, which has acted so universally upon
us in all ages, in spite of our best efforts to restrain it."
While in man the immediate dominating force of sexual passion
may be more conspicuous, in woman it holds more universal sway.
"For the man has other powers and faculties in full use, whereby
to break loose from the force of this; and the woman, specially
modified to sex and denied racial activity, pours her whole life
into love." Useful to the race as was this evolution originally,
its influence for good has long since reached its limit.
Excessive sex-energy has threatened to "destroy both individual
and race." Hence woman is declining longer to be confined
to her highly specialized sexual function and is demanding
an equal place in the social organization. She is gaining a
social consciousness: STETSON, _Women and Economics_, 5, 12
ff., 37 ff., 48, 122-45. _Cf._ SCHREINER, "The Woman Question,"
_Cosmopolitan_, XXVIII, 183 ff., on "sex-parasitism."
[832] _Cf._ STETSON, _op. cit._, 156 ff. "The woman's club
movement is one of the most important sociological phenomena of
the century--indeed, of all centuries--marking as it does the
first timid steps toward social organization of these so long
unsocialized members of our race;" for "social life is absolutely
conditioned upon organization."--_Ibid._, 164. On woman's clubs
see CROLY, _Hist. of the Woman's Club Movement in America_;
HENROTIN, _Attitude of Women's Clubs Toward Social Economics_;
LIVERMORE, _North Am. Rev._, CL, 115; ANSTRUTHER, _Nineteenth
Century_, XLV, 598-611; and a symposium in _Arena_, VI, 362-88.
The financial dependence of the wife is discussed by COOKE, "Real
Rights of Women," _North Am. Rev._, CXLIX, 353, 354; and by
IVES, "Domestic Purse Strings," _Forum_, X, 106-14, showing the
hardships and temptations of wives dependent upon the husband for
current supplies of money.
We are thus confronted by still another phase of the emancipation
movement--the divorce problem. In this problem woman has a peculiar
interest. The wife more frequently than the husband is seeking
in divorce a release from marital ills; for in her case it often
involves an escape from sexual slavery. The divorce movement,
therefore, is in part an expression of woman's growing independence.
In this instance as in others it does not, of course, follow that
the individualistic tendency is vicious. Nowhere in the field of
social ethics, perhaps, is there more confusion of thought than in
dealing with the divorce question. Divorce is not favored by anyone
for its own sake. Probably in every healthy society the ideal of
right marriage is a lifelong union. But what if it is not right,
if the marriage is a failure? Is there no relief? Here a sharp
difference of opinion has arisen. Some persons look upon divorce
as an evil in itself; others as a "remedy" for, or a "symptom" of,
social disease. The one class regard it as a cause; the other as
an effect. To the Roman Catholic, and to those who believe with
him, divorce is a sin, the sanction of "successive polygamy,"[833]
of "polygamy on the instalment plan."[834] At the other extreme
are those who, like Milton and Humboldt,[835] would allow marriage
to be dissolved freely by mutual consent, or even at the desire
of either spouse. Nay, there are earnest souls, shocked by the
intolerable hardships which wives may suffer under the marital
yoke, who, pending a reform in the marriage law, would, like the
Quakers of earlier days, ignore the present statutory requirements
and resort to private contract.[836] According to the prevailing
opinion, however, as expressed in modern legislation, divorce
should be allowed, with more or less freedom, under careful state
regulation. Whatever degree of liberty may be just or expedient
in a more advanced state of moral development, it is felt that
now a reasonable conservatism is the safer course. Yet divorce is
sanctioned by the state as an individual right; and there may be
occasions when the exercise of the right becomes a social duty.
The right is, of course, capable of serious abuse. Loose divorce
laws may even invite crime. Nevertheless, it is fallacious to
represent the institution of divorce as in itself a menace to social
morality. It is not helpful to allege, as is often done, that with
the increase of divorce certain crimes wax more frequent, thus
insinuating the effect for the cause. It is just as illogical to
assume that the prevalence of divorce in the United States is a
proof of moral decadence as compared with other countries in which
divorce is prohibited or more restricted. To forbid the use of
a remedy does not prove that there is no disease. Is there any
good reason for believing that what Tocqueville said fifty years
ago is not true today? "Assuredly," he declares, "America is the
country in the world where the marriage tie is most respected and
where the highest and justest idea of conjugal happiness has been
conceived."[837] It is remarkable, says Lecky, "that this great
facility of divorce should exist in a country which has long been
conspicuous for its high standard of sexual morality and for its
deep sense of the sanctity of marriage."[838] Bryce passes a similar
judgment: "So far as my own information goes, the practical level
of sexual morality is at least as high in the United States as in
any part of northern or western Europe (except possibly among the
Roman Catholic peasantry of Ireland)." There "seems no ground for
concluding that the increase of divorce in America necessarily
points to a decline in the standard of domestic morality, except
perhaps in a small section of the wealthy class, though it must
be admitted that if this increase should continue, it may tend to
induce such a decline."[839] Even more emphatic is Commissioner
Wright. After eloquently describing the relatively high place which
woman has reached in our land, he continues: "I do not believe that
divorce is a menace to the purity and sacredness of the family;
but I do believe that it is a menace to the infernal brutality, of
whatever name, and be it crude or refined, which at times makes a
hell of the holiest human relations. I believe the divorce movement
finds its impetus outside of laws, outside of our institutions,
outside of our theology; that it finds its impetus in the rebellion
of the human heart against that slavery which binds in the cruelest
bonds of the cruelest prostitution human beings who have, by their
foolishness, by their want of wisdom, or by the intervention of
friends, missed the divine purpose, as well as the civil purpose
of marriage. I believe the result will be an enhanced purity, a
sublimer sacredness, a more beautiful embodiment of Lamartine's
trinity,--the trinity of the father, the mother, and the child"--to
preserve which "in all its sacredness, society must take the bitter
medicine labelled 'Divorce.'"[840]
[833] According to CARDINAL GIBBONS there are "two species of
polygamy--simultaneous and successive": "Is Divorce Wrong?" in
_North Am. Rev._, CXLIX, 520.
[834] The epigram of Father Yorke, of San Francisco.
[835] WILHELM V. HUMBOLDT, _Sphere and Duties of Government_:
cited by MILL, _On Liberty_, 185, 186.
[836] For examples see SEWELL, in _Westminster Review_, CXLV,
182 ff., suggesting a form of private contract; and BESANT,
_Marriage_, 19, 20, who asks: "Why should not we take a leaf
out of the Quakers' book, and substitute for the present legal
forms of marriage a simple declaration publicly made?... but
as soon as the laws are moralized, and wives are regarded as
self-possessing human beings, instead of as property, then the
declaration may, with advantage, seek the sanction of the law."
She mentions the well-known cases of Mary Wollstonecraft, her
daughter and Shelley, Richard Carlile, and that of George Henry
Lewes and George Eliot. Mrs. Caird would not go so far. The
state, she concludes, hes no right to interfere in the marriage
contract. "How can it withdraw its interference without causing
social confusion? The answer seems plain. By a gradual widening
of the limitations within which individuals might be allowed to
draw up their private contracts, until, finally, moral standards
had risen sufficiently high to enable the state to cease from
interfering in private concerns altogether."--_The Morality of
Marriage_, 126. DONISTHORPE, "The Future of Marriage," _Fort.
Rev._, LI, 263, recommends a system of free private contract
for one year, renewable at the pleasure of the parties. He is
criticised by MALMSBURY, _ibid._, 272-82. _Cf._ also "Marriage
and Free Thought," _ibid._, L, 275 ff.
[837] TOCQUEVILLE, _La démocratie en Amérique_, II, 215.
[838] LECKY, _Dem. and Liberty_, II, 208.
[839] BRYCE, _Studies in Hist. and Jur._, 850.
[840] WRIGHT, in _Arena_, V, 141, 143. See also his _Practical
Sociology_, 170 ff.; and compare the article of SAVAGE,
"Matrimony and the State," _Forum_, X, 117 ff.; that of JANES,
"Divorce Sociologically Considered," _New Englander_, May, 1891,
395-402; and that of ADLER, "The Ethics of Divorce," in _Ethical
Record_, II, 200-209; III, 1-7.
This brings us to the root of the matter: the need of a loftier
popular ideal of the marriage relation. "An ounce of prevention is
worth a pound of cure." While bad legislation and a low standard
of social ethics continue to throw recklessly wide the door which
opens to wedlock, there must of necessity be a broad way out.
How ignorantly, with what utter levity,[841] are marriages often
contracted; how many thousands of parents fail to give their
children any serious warning against yielding to transient impulse
in choosing a mate; how few have received any real training with
respect to the duties and responsibilities of conjugal life! What
proper check is society placing upon the marriage of the unfit? Is
there any boy or girl so immature if only the legal age of consent
has been reached; is there any "delinquent" so dangerous through
inherited tendencies to disease or crime; is there any worn out
debauchee, who cannot somewhere find a magistrate or a priest to tie
the "sacred" knot? It is a very low moral sentiment which tolerates
modern wife-purchase or husband-purchase for bread, title, or social
position. "As our laws stare us in the face," exclaims an eloquent
writer, "there is no man so drunken, so immoral, so brutal, so
cruel, that he may not take to himself the purest, the most refined,
the most sensitive of women to wife, if he can get her. There is
no woman so paltry, so petty, so vain, so inane, so enfeebled in
body and mind by corsets or chloral, flirtation, or worse, that she
may not become the wife of an intellectual, honorable man, and the
mother of his doomed children. There is no pauper who may not wed a
pauper and beget paupers to the end of his story. There is no felon
returned from his prison, or loose upon society uncondemned, who may
not make a base play at wedlock, and perpetuate his diseased soul
and body in those of his descendants, without restraint. There is
no member of what we call our 'respectable' classes who may not, if
he choose, make a mock of the awful name of marriage, in sacrilege
to which we are so used that we scarcely lift an eyelid to suppress
surprise or aversion at the sickening variety of the offence."[842]
[841] The following newspaper paragraph relating to a notorious
wedding resort in Michigan illustrates the shocking frivolity
with which the most important of human relations is sometimes
treated: "It is estimated that fully 20,000 people will visit
this city tomorrow to attend the third annual Maccabees'
county picnic.... It is thought tomorrow will prove to be the
greatest day in the history of St. Joseph as the Gretna Green
of Chicago.... Fully forty-four bridal couples will arrive from
Chicago to take advantage of being married free, as is offered
by the Maccabees in a part of their program. The parties with
matrimonial intentions, upon calling at Marriage Temple, will
be furnished by County Clerk Needham with their license and a
handsome marriage certificate, free of charge, provided they
consent to be married in public from the verandah of the hotels.
Any clergyman in the city, upon request ... , will officiate.
Hundreds of excursionists from Indiana will come for the express
purpose of witnessing the ceremonies." On this point read the
interesting article of DENDY, "Marriage in East London," _Cont.
Rev._, LXV, 427-32.
[842] ELIZABETH STUART PHELPS, "Women's Views of Divorce," _North
Am. Rev._, CL, 130, 131.
It is vain to conceal from ourselves the fact that here is a real
menace to society. Marriages thus formed are almost sure to be
miserable failures from the start. It is the simple truth, as
earnest writers have insisted, that often under such conditions the
nuptial ceremony is but a legal sanction of "prostitution within the
marriage bond," whose fruit is wrecked motherhood and the feeble,
base-born children of unbridled lust. The command to "be fruitful
and multiply," under the selfish and thoughtless interpretation
which has been given it, has become a heavy curse to womanhood
and a peril to the human race.[843] On the face of it, is it not
grotesque to call such unions holy or to demand that they shall be
indissoluble? What chance is there under such circumstances for
a happy family life or for worthy home-building? In sanctioning
divorce the welfare of the children may well cause the state
anxiety; but are there not thousands of so-called "homes" from whose
corrupting and blighting shadow the sooner a child escapes the
better for both it and society?
[843] _Cf._ FLOWER, "Prostitution Within the Marriage Bond,"
_Arena_, XIII, 59-73; _idem_, "Wellsprings of Immorality,"
_ibid._, XI, 56-70; HEINZEN, _The Rights of Women and the Sexual
Relations_, 44 ff.; STETSON, _Women and Economics_, 63 ff.;
CAIRD, _Morality of Marriage_, 73-91, 134 ff., discussing the
influence of the Reformation upon sensuality; KARL PEARSON,
"Socialism and Sex," in his _Ethic of Free Thought_, 427-46, on
the alleged evil influence of Luther on the sex-relations; BEBEL,
_Die Frau und der Sozialismus_, 93 ff., taking the opposite view
as to Luther, and considering the causes of the decline in the
birth and marriage rates.
The traditional opinion is represented by NAUMANN, _Christenthum
und Familie_, 21, 22, who believes in getting children at all
hazards, relying on God to take care of them: "Es gibt auch
Christen," he says, "welche sich vor Entfaltung des vollen
Gottessegens in den Ehen fürchten, ganz als ob es nicht wahr
wäre: was unser Gott erschaffen hat, das will er auch erhalten.
In unsern Augen ist es Glaubensschwäche, wenn ein christliches
Volk sich vor dem Gottessegen reicher, blühender Kinderschaaren
fürchtet." On the same side see HARTMANN, _The Sexes Compared_,
28 ff.; POMEROY, _The Ethics of Marriage_, 45 ff., 94 ff. For
an antidote read the able discussion of the diminishing need
of child-bearing under modern conditions, by OLIVE SCHREINER,
"The Woman Question," _Cosmopolitan_, XXVIII, 51 ff.; and LADY
SOMERSET, "The Welcome Child," _Arena_, XII, 42-49; criticised
by USSHER, _Neo-Malthusianism_, 101 ff., 201. _Cf._ WRIGHT,
_Practical Sociology_, 68 ff.; BERTHEAU, _Lois de la population_,
299 ff., 342 ff.
How shall the needed reform be accomplished? The raising of ideals
is a slow process. It will not come through the statute-maker,
though he can do something to provide a legal environment favorable
for the change. It must come through an earnest and persistent
educational effort which shall fundamentally grapple with the
whole group of problems which concern the related, though distinct,
institutions of marriage, the home, and the family. In this work
every grade in the educational structure, from the university to
the kindergarten and the home circle, must have its appropriate
share. Already a few of our higher institutions have made a worthy
beginning. Departments of physical culture, economics, history, and
sociology are providing instruction of real value. But the movement
should become universal; and the curriculum should be broadened and
deepened. The actual concrete problems must be dealt with frankly
and without flinching. To gain the right perspective it is highly
important that a thorough historical basis should be laid through
the study of ethnology, comparative religion, and the evolution
of cultural, economic, and matrimonial institutions. Moreover,
the elements of such a training in domestic sociology should find
a place in the public school program. If need be, a little more
arithmetic or a little more Latin may be sacrificed. Where now,
except perhaps in an indirect or perfunctory way, does the school
boy or girl get any practical suggestion as to home-building, the
right social relations of parent and child, much less regarding
marriage and the fundamental questions of the sexual life? In this
field the home, as the complement or coadjutor of the school and the
state, has a precious opportunity. Indeed, our inspiring hope lies
in the fact that, in spite of unfavorable conditions, many homes,
presided over by enlightened parents, are discharging worthily, if
not yet ideally, the high function of social training. Here father,
mother, and child are equal members of the "trinity." Here it is
held as binding an obligation and as joyous a privilege for the
parents to honor their children as for the children to honor their
parents. Of a truth, is there anything on earth more beautiful and
inspiring than the real companionship of parent and child; than a
home life in which the characters of the young are molded and their
faculties drawn out by free and frank discussion with their elders;
where mutual love is based on mutual respect? But what shall be said
of the opposite picture--of the countless families in which mother
and child still cower before the paternal despot; where authority
and not reason prevails; where, as in the good old colonial days,
the child is harshly thrust into the background and his insistent
individualism is insulted and repressed? Before the home can become
a healthful school for social education, parents must themselves be
trained; they must become aware of their real place in the social
order.
In the future educational program sex questions must hold an
honorable place. Progress in this direction may be slow, because
of the false shame, the prurient delicacy, now widely prevalent
touching everything connected with the sexual life. Nor is it a
light matter to brave orthodox sentiment in this regard. It is not
always safe for the teacher, even in institutions deeming themselves
modern, to deal frankly with the organic facts which are of vital
concern to the human race. The folly of parents in leaving their
children in ignorance of the laws of sex is notorious. Yet how much
safer than ignorance is knowledge as a shield for innocence. The
daughter will face the vicissitudes of life more securely if she
has been told of the destiny that awaits her as wife and mother;
if she has been warned of the snares with which lust has beset
the path of womanhood. The son is likely to live a nobler life if
he has learned to repudiate the dual standard of sexual morality
which a spurious philosophy has set up; if he understands that
"instincts" may be safely controlled; if he has been warned that
selfish excesses within or without the marriage bond must be dearly
paid for by the coming generations. Indeed, it is of the greatest
moment to society that the young should be trained in the general
laws of heredity. Everywhere men and women are marrying in utter
contempt of the warnings of science. Domestic animals are literally
better bred than human beings. Through ignorance and defiance of the
rules of health, we are destroying our physical constitutions. Under
the plea of "romantic love" we blindly yield to sexual attractions
in choosing our mates, selfishly ignoring the welfare of the race.
Is there not a higher ideal of conjugal choice? Experience shows
that in wedlock natural and sexual selection should play a smaller
and artificial selection a larger rôle.[844] The safety of the
social body requires that a check be put upon the propagation of
the unfit. Here the state has a function to perform. In the future
much more than now, let us hope, the marriage of persons mentally
delinquent or tainted by hereditary disease or crime will be legally
restrained. Yet law can do relatively little. A reform of this kind
must of necessity depend mainly upon a better educated popular
sentiment; upon a higher altruism which shall be capable of present
sacrifice for the permanent good of the race. "When human beings and
families rationally subordinate their own interests as perfectly to
the welfare of future generations as do animals under the control
of instinct the world will have a more enduring type of family
life than exists at present. This can only be accomplished by the
development of controlling ideals which are supported not only by
reason and intelligence but by ethical impulse and religious motive.
This larger altruism which protects the permanent interests of the
future against the more temporary values of the present must be
of the heart as much as of the head.... In the mating of men and
women, money, social position, worldly expediency, the conventional
and fictitious values so influential in these days, will count for
much less, while organic health and efficiency, character, unselfish
devotion to high ideals, to the great world interests will count
for far more. In this obedience to ideals so farsighted, romantic
love will not be lost in any way, as some seem to fear. Men and
women will not choose one another in cold blood simply because
intelligence and reason point the way, but human sentiment and
every romantic quality will be enhanced when permanent and future
interests are furthered by a saner and finer human choice."[845]
[844] For a radical discussion of this topic, see STANLEY,
"Artificial Selection and the Marriage Problem," _Monist_, II,
51 ff.; _idem_, "Our Civilization and the Marriage Problem,"
_Arena_, II, 94-100. He is criticised by WALLACE, "Human
Selection," _Fort. Rev._, XLVIII, 325 ff. An extreme position
is taken by GRANT ALLEN, "The Girl of the Future," _Universal
Rev._, May, 1890; and "Plain Words on the Woman Question," _Fort.
Rev._, Oct., 1889. _Cf._ WERTHEIMER, "Homiculture," _Nineteenth
Century_, XXIV, 390-92.
[845] See DR. THOMAS D. WOOD'S able paper, _Some Controlling
Ideals of the Family Life of the Future_, 27.
There is then no need to despair of the future. It is vain to turn
back the hand on the dial. The problem of individual liberty has
become the problem of social liberty. Individualization for the sake
of socialization must continue its beneficent work. There must be
growth, constant readjustment. Marriage will in truth be holy if it
rests on the free trothplight of equals whose love is deep enough
to embrace a rational regard for the rights of posterity. The home
will not have less sanctity when through it flows the stream of the
larger human life. The family will, indeed, survive; but it will
be a family of a higher type. Its evolution is not yet complete.
Coercive ties will still further yield to voluntary spiritual ties;
for individual liberty appears to be the essential condition of
social progress.
BIBLIOGRAPHICAL INDEX
Apparently no successful attempt has ever been made to prepare a
complete and systematic bibliography of matrimonial institutions.
Indeed, to do so would be a formidable undertaking; but that such a
book would be of vast service to social history no one can doubt.
Useful lists of authorities, however, are appended to the works of
various writers, notably to Lubbock's _Origin of Civilization_;
Starcke's _Primitive Family_; Chamberlain's _Child and Childhood_;
Lehr's _Le mariage_; and especially Westermarck's _Human Marriage_.
For marriage with kindred, including the deceased wife's sister,
there is a good, though not exhaustive, bibliography by A. H. Huth
in the _Report of the First Annual Meeting of the Index Society_
(London, 1879), 25-47; greatly enlarged in his _Marriage of Near
Kin_ (2d ed., London, 1887), 394-465. Ethbin Heinrich Costa's
_Bibliographie der deutschen Rechtsgeschichte_ (Braunschweig, 1858)
is helpful, particularly for the earlier monographic literature.
For supplementary materials, especially the curiosities of the
subject, consult Hugo Hayn's _Bibliotheca Germanorum erotica:
Verzeichniss der gesammten deutschen erotischen Literatur mit
Einschluss der Uebersetzungen, nebst Angabe der fremden Originale_
(2d ed., Leipzig, 1885); the same writer's _Bibliotheca Germanorum
nuptialis_ (Cologne, 1890); and the well-known _Bibliographie des
ouvrages relatifs à l'amour, aux femmes, au mariage_, etc. (3d ed.,
6 vols., San Remo, London, Nice, and Turin, 1871-73). Legal works on
marriage and related institutions are included in Martin Lipenius's
_Bibliotheca realis juridica omnium materiarum, rerum, et titulorum,
in universo universi juris ambitu occurrentium, post F. G. Struvii
et G. A. Jenichenii curas emendata ... et locupletata_ (2 vols.,
folio, Leipzig, 1757); but of much more service for the present
purpose is the great work of J. F. von Schulte, _Die Geschichte der
Quellen und Literatur des canonischen Rechts von Gratian bis auf die
Gegenwart_ (3 vols., bound in 4, Stuttgart, 1875-80). Many recent
publications are entered in George K. Fortescue's _Subject Index of
the Modern Works Added to the Library of the British Museum in the
Years 1880-1895_ (3 vols., London, 1886-97); while Poole's _Index_
contains the titles of more than 1,200 articles on various phases of
the subject, including woman in her family relations.
For topical analysis of the literature presented in this
Bibliographical Index consult the critical and descriptive notes at
the heads of the respective chapters.
I. EARLY HISTORY OF MATRIMONIAL INSTITUTIONS
Abercromby, John. "Marriage Customs of the Mordvins." _Folklore_, I,
417-62. London, 1890.
Achelis, A. "Die Geschlechtsgenossenschaft und die Entwickelung der
Ehe." _Zeitschrift der Gesellschaft für Erdkunde zu Berlin_, XXV,
Heft 4. Berlin, 1890.
Achelis, T. "Die Entwicklung der Ehe." _Beiträge zur Volks- und
Völkerkunde_, II. Berlin, 1893.
------ "The Historical Development of the Family." _Open Court_, II,
806, 807. Chicago, 1888-89.
Adam, Lucien. Du parler des hommes et du parler des femmes dans la
langue caraibe. Paris, 1879.
Adams, Henry. Historical Essays, New York, 1891.
Alabaster, Ernest. Notes and Commentaries on Chinese Criminal Law.
London, 1899.
_American Anthropologist._ 11 vols. Washington, 1888-98.
_American Antiquarian._ 20 vols. Chicago, 1879-98.
American Association for the Advancement of Science. _Proceedings._
47 vols. Philadelphia, Cambridge, and Salem, 1849-98.
Amram, D. W. "Divorces on Condition [Hebrew]." _Green Bag_, III,
381-83. Boston, 1891.
------ "Chapters from the Ancient Jewish Law: Divorce." _Ibid._, IV,
36 ff., 493 ff. Boston, 1892.
------ The Jewish Law of Divorce. Philadelphia, 1896.
Anchieta, Padre José d'. "Informacão dos casamentos dos Indios do
Brazil." _Revista trimensal de historia e geographia_, VIII (1846),
254-62. Rio de Janeiro, 1867.
_Annales de l'Institut international de sociologie._ Publiées
sous la direction de René Worms. II, "Travaux du second congrès,
septembre-octobre 1895." Paris, 1896.
_Anthropological Institute of Great Britain and Ireland_, _Journal
of_. 26 vols. London, 1872-97.
Araki, Toratoro. Japanisches Ehoschliessungsrecht: eine
historisch-kritische Studie. Inaugural-Dissertation. Göttingen, 1893.
Atkinson, J. J. Primal Law. London, New York, and Bombay, 1903.
Avery, J. "Polyandry in India and Thibet." _American Antiquarian and
Oriental Journal_, IV, 48-53.
------ "The Races of the Indo-Pacific Oceans: Polynesians."
_American Antiquarian_, VI, 361-69. Chicago, 1884.
Ayrer, Georg Heinrich. De jure connubiorum apud Romanos quam sub
divini numinis tutela, etc. Göttingen, 1736.
Backer, Louis de. Le droit de la femme dans l'antiquité: son devoir
au moyen âge. A. Claudin, éditeur. Paris, 1880.
Bachofen, J. J. Das Mutterrecht: eine Untersuchung über die
Gynaikokratie der alten Welt nach ihrer religiösen und rechtlichen
Natur. Stuttgart, 1861.
------ Die Sage von Tanaquil. Heidelberg, 1870.
------ Antiquarische Briefe. Strassburg, 1886.
Bader, Clarisse. La femme dans l'Inde antique: études morales et
littéraires. 2d ed. Paris, 1867.
------ La femme biblique, son influence religieuse, sa vie morale et
sociale. New ed., revised and corrected. Paris, 1873.
------ La femme grecque: étude de la vie antique. 2 vols. 2d ed.
Paris, 1873.
------ La femme romaine: étude de la vie antique. 2d ed. Paris, 1877.
Baegert, Jacob. "An Account of the Aboriginal Inhabitants of the
Californian Peninsula." Trans. by Charles Rau. _Report of the
Smithsonian Institution_ for 1864, 378-99. Washington, 1865.
Bagehot, Walter. Physics and Politics. London, 1872.
Ball, B. W. "The Rights of Women in Ancient Athens." _Atlantic
Monthly_, XXVII, 273-86. Boston, 1871.
Bandelier, A. P. "On the Social Organization and Mode of Government
of the Ancient Mexicans." _Report of the Peabody Museum_, II,
557-699. Cambridge, 1880.
Bardesan (_ca._ 250 A. D.). Book of the Laws of Countries.
(Identical with his De Fato.) Trans. in William Cureton's
Spicilegium syriacum. London, 1855.
Baring-Gould, S. "Marriage." In his Germany, Present and Past,
96-126. New York, n. d.
Baron, J. "Das Heirathen in alten und neuen Gesetzen." In R.
Virchow and I. von Holtzendorff's _Sammlung gemeinverständlicher
wissenschaftlicher Vorträge_. Berlin, 1874.
Barthélemy, Anatole de. "Le droit du seigneur." _Revue des questions
historiques_, I, 95-123. Paris, 1866.
Bastian, A. "Ueber die Eheverhältnisse." _ZFE._, VI.
------ "Matriarchat und Patriarchat." _Ibid._, _Verhandlungen_,
331-41. Berlin, 1886.
Bastian, A. Die Rechtsverhältnisse bei verschiedenen Völkern der
Erde. Berlin, 1872.
Baway, Ahamadu. "The Marriage Customs of the Moors of Ceylon."
_Journal of the Royal Asiatic Society_, Ceylon Branch, X, 219-33.
Colombo, 1888.
Beauchamp, W. M. "Permanence of Early Iroquois Clans and
Sachemships." _Proceedings of the American Association for the
Advancement of Science_, XXXIV, 381-92. Salem, 1886.
------ "Aboriginal Communal Life in America." _American
Antiquarian_, IX, 343-50. Chicago, 1887.
Beckwith, Paul. "Notes on Customs of the Dakotahs." _Report of the
Smithsonian Institution_ for 1886, Part I, 245-57. Washington, 1889.
Bergel, J. Die Eheverhältnisse der alten Juden im Vergleiche mit den
griechischen und römischen. Leipzig, 1881.
Bernhöft, F. Staat und Recht der römischen Königszeit im Verhältniss
zu verwandten Rechten. Stuttgart, 1882.
------ Verwandtschaftsnamen und Eheformen der nordamerikanischen
Volksstämme. Rostock, 1888.
------ "Ueber die Grundlagen der Rechtsentwicklung bei den
indogermanischen Völkern." _ZVR._, II. Stuttgart, 1880.
------ "Das Gesetz von Gortyn." _Ibid._, VI. Stuttgart, 1886.
------ "Zur Geschichte des europäischen Familienrechts." _Ibid._,
VIII. Stuttgart, 1888.
------ "Die Principien des europäischen Familienrechts." _Ibid._,
IX. Stuttgart, 1891.
------ "Altindische Familienorganisation." _Ibid._, IX. Stuttgart,
1891.
------ "Ehe und Erbrecht der griechischen Heroenzeit." _Ibid._, XI.
Stuttgart, 1895.
Bertholon, M. "Les formes de la famille chez les premiers habitants
de l'Afrique du nord d'après les écrivains de l'antiquité et des
coutumes modernes." _Archives de l'anthropologie criminelle_, VIII
(1893), 581-614.
"Bibliophile" (pseud.). Les nuits d'épreuve des villageoises
allemandes avant le mariage. Brussels, 1877.
Billington, Mary Frances. Women in India. London, 1895.
Blumentritt, Ferdinand. Versuch einer Ethnographie der Philippinen.
Gotha, 1882.
Boaz, Franz. "The Social Organization and the Secret Societies
of the Kwakiutl Indians: Based on the Personal Observations and
the Notes Made by Mr. George Hunt." _Report of the Smithsonian
Institution_ for 1895, 311-738, _Report of the U.S. National
Museum_. Washington, 1897.
Bogišić, V. De la forme dite "Inokosna" de la famille rurale chez
les Serbes et les Croates. Paris, 1884.
Botsford, G. W. "The Athenian Constitution." _Cornell University
Studies in Classical Philology_, IV. Boston, 1893.
Bourdin, Albert. De la condition de la mère en droit romain et en
droit français. Paris, 1881.
Brehm, A. C. Thierleben. 10 vols. 3d ed. Leipzig and Vienna, 1891.
Brinton, D. S. "Religions of Primitive Peoples." _American Lectures
on the History of Religion._ 2d series. New York and London, 1897.
Brissonius, Barnabe. De ritu nuptiarum. Paris, 1564.
------ De jure connubiorum. Paris, 1564. (Published and bound with
the preceding.)
Brooks, W. K. The Law of Heredity. 2d ed. Baltimore and New York,
1883.
Brouardel, P. L'infanticide. Paris, 1897.
Buch, Max. Die Wotjäken, eine ethnologische Studie. From _Acta
societatis scientiarum Fennicae_, XII. Helsingfors, 1882.
Buchner, Max. Kamerun. Leipzig, 1887.
Burnell, A. C., and Hopkins, E. W. The Ordinances of Manu. London,
1891.
Carr, Lucien. The Social and Political Position of Women among the
Huron-Iroquois Tribes. From the _XVI. Report of the Peabody Museum_.
Cambridge, 1883.
Cassel, Paulus. Gesammelte Schriften. I. Berlin, 1893.
Catlin, George. Indian Tribes. 2 vols. London, 1857.
Chamberlain, Alexander Francis. The Child and Childhood in
Folk-Thought. New York, 1896.
Chamblain, L. J. De la puissance paternelle chez les Romains:
dissertation présentée à la faculté de droit de Paris. Paris, 1829.
Chaplin, J. "The Position of Women among the Ancient Romans."
_Baptist Review_, III, 466 ff.
Chinese Marriage. Mariage impérial chinois: un cérémonial. Traduit
par G. Devéria. Paris, 1887.
Ciccotti, Ettore. Donne e politica negli ultimi anni della republica
romana. Milan, 1895.
Codrington, R. H. "Social Regulations in Melanesia." _Journal of the
Anthropological Institute_, XVIII, 300-313. London, 1889.
------ The Melanesians: Studies in Their Anthropology and Folk-Lore.
Oxford, 1891.
Combier, Émilien. Du divorce en droit romain: de la séparation du
corps en droit français. Paris, 1880.
Corbusier, W. M. "The Apache-Yumas and Apache-Mojaves." _American
Antiquarian_, VIII, 276-84, 325-39. Chicago, 1886.
Cornil, Georges. "Contribution à l'étude de la patria potestas."
_Nouvelle revue historique de droit_, XXI, 416-85. Paris, 1897.
Corre, A. La mère et l'enfant dans les races humaines. Paris, 1882.
Couch, John Andrew. "Woman in Early Roman Law." _Harvard Law
Review_, VIII, 39-50. Cambridge, 1895.
Crawley, Ernest. "Sexual Taboo: A Study of the Relations of the
Sexes." _Journal of the Anthropological Institute_, XXIV, 116-25,
219-35, 430-46. London, 1895.
------ The Mystic Rose: A Study of Primitive Marriage. New York,
1902.
Cunow, H. "Die ökonomischen Grundlagen der Mutterherrschaft." _Neue
Zeit_, XVI. Jahrgang, I, No. 4. Stuttgart, 1897-98.
------ Die Verwandtschafts-Organisationen der Australneger: ein
Beitrag zur Entwicklungsgeschichte der Familie. Stuttgart, 1894.
Curr, E. C. The Australian Race. 4 vols. Melbourne, 1886.
Daigoro, Goh. "The Family Relations in Japan." _Transactions of the
Japan Society_, II.
Danks, B. "Marriage Customs of the New Britain Group." _Journal of
the Anthropological Institute_, XVIII, 281-94. London, 1889.
Darab Dastur. Next-of-Kin Marriages in Old Iran. London, 1888.
Dargun, L. "Mutterrecht und Raubehe und ihre Reste im germanischen
Recht und Leben." In Gierke's _Untersuchungen_, XVI. Breslau, 1883.
------ Mutterrecht und Vaterrecht. Leipzig, 1892.
------ "Ursprung und Entwicklungs-Geschichte des Eigenthums."
_ZVR._, V. Stuttgart, 1884.
Darinsky, A. "Die Familie bei den kaukasischen Völkern." _Ibid._,
XIV, 149-210. Stuttgart, 1900.
Darwin, C. The Variation of Animals and Plants under Domestication.
2 vols. New York, 1890.
------ The Descent of Man and Selection in Relation to Sex. New
York, 1890.
Davoud-Oghlou, Garabed Artin. Histoire de la législation des anciens
Germains. 2 vols. Berlin, 1845.
Dawson, James. Australian Aborigines: The Language and Customs of
Several Tribes of Aborigines in the Western District of Victoria.
Melbourne, Sydney, and Adelaide, 1881.
Delbrück, Berthold. Altindisches Tempuslehre. Halle, 1876.
------ Die indogermanischen Verwandtschaftsnamen. Leipzig, 1885.
Delbrück, Berthold. "Das Mutterrecht bei den Indogermanen."
_Preussische Jahrbücher_, XCVII, Heft 1. Berlin, 1895.
Delpit, Jules. Réponse d'un Campagnard à un Parisien ou réfutation
du livre de M. Veuillot sur le droit du seigneur. Paris, 1857.
D'Évreux, Père Yves. Voyage dans le nord du Brésil fait durant
les années 1613 et 1614; avec une introduction et des notes par
Ferdinand Denis. Leipzig and Paris, 1864.
Dobrizhoffer, Martin. Of the Weddings, and Of the Marriages of the
Abipones, an Equestrian People of Paraguay (II, 207-15). 3 vols.
Trans. from the original Latin. London, 1822.
Donaldson, James. "Women in Ancient Greece." _Contemporary Review_,
XXXII, 647 ff. London, 1878.
------ "Women in Ancient Athens." _Ibid._, XXXIV, 700-716. London,
1879.
------ "The Position of Women in Ancient Rome." _Ibid._, LIII, LIV.
London, 1888.
Doolittle, J. Social Life of the Chinese. 2 vols. New York, 1867.
Dorsey, James Owen. "Omaha Sociology." _III. Report of Bureau of
Ethnology_, 205-370. Washington, 1884.
------ "Siouan Sociology: A Posthumous Paper." _XV. Report of Bureau
of Ethnology_, 205-44. Washington, 1897.
Drummond, H. The Ascent of Man. New York, 1894.
Dubief, Disseruit L. Qualis fuerit familia romana, tempore Plauti,
ex ejus Fabulis. Molini, 1859.
Duboc, Karl Julius. Die Psychologie der Liebe. Hanover, 1874.
Düringsfeld, Ida von, and Reinsberg-Düringsfeld, Otto Freiherr von.
Hochzeitsbuch: Brauch und Glaube der Hochzeit bei den christlichen
Völkern Europas. Leipzig, 1871.
Duschak, M. Das mosaisch-talmudische Eherecht. Vienna, 1864.
Düsing, Carl. Die Regulierung des Geschlechtsverhältnisses. Jena,
1884.
Eells, Myron. "The Twana, Chemakum, and Klallam Indians of
Washington Territory." _Report of the Smithsonian Institution_ for
1887, 605-81. Washington, 1889.
Eggers, F. W. Th. Ueber das Wesen und die Eigenthümlichkeiten der
alt-römischen Ehe mit Manus. Altona, 1833.
Ellis, A. B. The Tshi-Speaking Peoples of the Gold Coast of West
Africa. London, 1887.
------ The Ewe-Speaking Peoples of the Slave Coast of West Africa.
London, 1890.
------ "Survivals from Marriage by Capture." _Popular Science
Monthly_, XXXIX, 207-22. New York, 1891.
------ "On Polyandry." _Ibid._, 801-9. New York, 1891.
Ellis, A. B. "Marriage and Kinship among the Ancient Israelites."
_Ibid._, XLII, 325-37. New York, 1892-93.
Ellis, Havelock. Man and Woman: A Study of Human Secondary
Characters. London, 1896.
------ Studies in the Psychology of Sex. Vol. I, "Sexual Inversion."
London, 1897.
Engels, Friedrich. Der Ursprung der Familie, des Privateigenthums,
und des Staats. 5th ed. Stuttgart, 1892.
Esmein, A. Mélanges d'histoire du droit et de critique: droit
romain. Paris, 1886.
Espinas, Alfred. Des sociétés animales. 2d ed. Paris, 1878.
Farrar, J. A. "Early Wedding Customs." In his Primitive Manners and
Customs, 188-238. London, 1879. The same in _Gentleman's Magazine_,
new series, XXI, 321-45. London, 1878.
------ "Marriage by Capture." _Gentleman's Magazine_, new series,
XL, 267-73. London, 1888.
Fawcett, F. "On Basivis: Women, Who, through Dedication to a Deity,
Assume Masculine Privileges." _Journal of the Anthropological
Society_ (Bombay), II (1891), 322-54.
Featherman, A. Social History of the Races of Mankind. 6 vols.
London, 1881-91.
Fielde, Adele M. "Chinese Marriage Customs." _Popular Science
Monthly_, XXXIV, 241-46. New York, 1888.
Finck, H. T. Romantic Love and Personal Beauty: Their Development,
Causal Relations, and Historical and Natural Peculiarities. 2 vols.
London, 1887.
------ Primitive Love and Love-Stories. New York, 1899.
Fischer, Chr. J. Ueber die Probenächte der teutschen Bauernmädchen.
Wortgetreues Abdruck der Original-Ausgabe, Berlin and Leipzig, 1780.
Leipzig, 1898.
Fison, Lorimer. "Views of Primitive Marriage." _Popular Science
Monthly_, XXVII, 203-15. New York, 1880.
Fison, Lorimer, and Howitt, A. W. Kamilaroi and Kurnai. Melbourne,
1880.
Fletcher, Alice C. "The Emblematic Use of the Tree in the Dakotan
Group." _Proceedings of the American Association for the Advancement
of Science_, XLV, 191-209. Salem, 1897.
------ "A Study from the Omaha Tribe: The Import of the Totem." (An
abstract.) _Ibid._, XLVI, 325-34. Salem, 1898.
Flittner, C. G. Die Feyer der Liebe, oder Beschreibung der
Verlobungs- und Hochzeits-Ceremonien aller Nationen. Berlin, 1795.
Foras, Amédée, Comte de. Le droit du seigneur au moyen âge: étude
critique et historique. Chambéry, 1886.
Fraser, J. G. The Golden Bough: A Study in Comparative Religion. 2d
ed. 3 vols. London, 1900.
------ Totemism. Edinburgh, 1887.
------ "Kinship and Marriage in Early Arabia." _Academy_, XXIX, 220,
221. London, 1886.
Frerichs, H. Zur Naturgeschichte des Menschen. 2d ed. Norden, 1891.
Friedlaender, Ludwig. Darstellungen aus der Sittengeschichte Roms.
6th ed. 3 vols. Leipzig, 1888-90.
Friedrich, J. B. Ueber die jüdische Beschneidung in historischer,
operativer und sanitätspolizeilicher Beziehung. Ansbach, 1844.
Friedrichs, Karl. "Zur Matriarchatsfrage." _ZFE._, XX. Berlin 1880.
------ "Das Eherecht des Islams." _ZVR._, VII. Stuttgart, 1887.
------ "Ueber den Ursprung des Matriarchats." _Ibid._, VIII.
Stuttgart, 1888.
------ "Familienstufen und Eheformen." _Ibid._, X. Stuttgart, 1892.
------ "Zum japanischen Recht." _Ibid._
Fritsch, G. Die Eingeborenen Südafrikas ethnographisch und
anatomisch. Breslau, 1873.
Fustel de Coulanges. The Ancient City. Trans, by Small. 3d ed.
Boston and New York, 1877; also Boston, 1896.
Galton, F. "Marriage Systems of Australian Aborigines." _Journal of
the Anthropological Institute_ XVIII, 70-72. London, 1889.
Gaya, Louis de. Cérémonies nuptiales de toutes les nations. Original
ed. Paris, 1680. (There are various summaries, and also a later
edition, Paris, 1852.)
Geddes, Patrick, and Thompson, J. Arthur. The Evolution of Sex. New
York, n. d.
Gerlach, Fridericus de. De Romanorum connubio commentatio. Hallis
Saxonum, 1851.
Gessert, F. A. Ad legem Juliam de adulteriis coercendis. G. A.
Kleuschrod, _Praes._ Wirceburgi, 1795.
Giddings, Franklin H. Principles of Sociology. New York and London,
1896.
Gide, P. Étude sur la condition de la femme dans le droit ancien et
moderne, et en particulier sur le sénatus-consulte velléien. 2d ed.
by A. Esmein. Paris, 1885.
Giraud-Teulon, A. La mère chez certains peuples de l'antiquité:
études sur les sociétés anciennes. Paris and Leipzig, 1867.
------ Les origines du mariage et de la famille. Geneva and Paris,
1884.
Gomme, G. L. "On the Evidence for Mr. McLennan's Theory of the
Primitive Human Horde." _Journal of the Anthropological Institute_,
XVII, 118-33. London, 1888.
Gooroodass, Banerjee. "The Hindu Law of Marriage and Stridahn."
_Tagore Law Lectures_, 1878. Calcutta, 1879.
Gramont, Le Comte F. de. Comment on se marie. Brussels, 1858.
Gray, John Henry. China: A History of the Laws, Manners, and Customs
of the People. Ed. by William Gow Gregor. 2 vols. London, 1878.
Greenwood, J. The Wild Man at Home. London, n. d.
Grinnell, G. B. "Marriage among the Pawnees." _American
Anthropologist_, IV, 275-81. Washington, 1891.
Groos, Karl. Die Spiele der Thiere. Jena, 1896.
---- The Play of Animals. Trans. by Eliz. L. Baldwin. New York, 1898.
Grosier, L'Abbé. Extracts from his De la Chine, 1819. (1) "De la
piété filiale," Liv. X, chap, ix; (2) "Mariages chinois," Liv. XI,
chap. i.
Grosse, Ernst. Die Formen der Familie und die Formen der
Wirthschaft. Freiburg and Leipzig, 1896.
Grossmann, F. E. "The Pima Indians of Arizona." _Report of the
Smithsonian Institution_ for 1871, 407-19. Washington, 1873.
Grupen, Christian Ulrich. Tractatio de vxore romana cum ea, quae
in manvm convenit, farre, coemtione et vsu, tum illa, quae vxor
tantummodo habebatur. Hanoverae, 1727.
Gumarães, José da Silva. "Memoria: Sobre os usos, costumes e
linguagem dos Appiaacás, e descobrimento de novas minas na Provincia
de Mato Grosso." _Revista trimensal de historia e geographia_, etc.,
VI. 2d ed. Rio de Janeiro, 1865.
Haas, E. "Die Heirathsgebräuche der alten Inder nach den
Grihyasûtra." In Weber's _Indische Studien_, V, 267-412. Berlin,
1862.
Halbert, H. C. "Courtship and Marriage among the Choctaws of
Mississippi." _American Naturalist_, XVI, 222, 223. Philadelphia,
1882.
Hanoteau, A., and Letourneaux, A. La Kabylie et les coutumes
kabyles. 3 vols. Paris, 1893.
Harper, Robert Francis (editor). The Code of Hammurabi, King of
Babylon about 2250 B.C. University of Chicago Press Chicago, 1904.
Harrison, Charles. "Religion and Family among the Haidas (Queen
Charlotte Islands)." _Journal of the Anthropological Institute_,
XXI, 14-29. London, 1892.
Hartland, E. S. "Marriage Ceremonies among the Aborigines of
Bengal." _Imperial and Asiatic Quarterly Review_, new series, V,
183-211. Moking, [1893].
Hase, E. De manu juris romani antiquioris contentio. Hallis, 1847.
Hasse, Johann Christian. Das Güterrecht der Ehegatten nach römischem
Recht. Berlin, 1824.
Haupt, Ernest Frederick. De poena adulterii ex lege Julia coercendis
adulteriis. Lipsiae, 1797.
Haupt, Paul. Die sumerischen Familiengesetze in Keilschrift;
Transcription und Übersetzung, nebst ausführlichem Commentar und
zahlreichen Excursen: eine assyriologische Studie. Leipzig, 1879.
Hearn, W. E. The Aryan Household. London and Melbourne 1879.
Hellwald, Friedrich von. Kulturgeschichte in ihrer natürlichen
Entwicklung bis zur Gegenwart. 3d ed. Augsburg, 1883.
------ Die menschliche Familie. Leipzig, 1889.
Henrici, E. "Das Volksrecht der Epheneger und sein Verhältnis zur
deutschen Colonisation im Togogebiete." _ZVR._, XI. Stuttgart, 1895.
Hermann, Emanuel. "Die Familie vom Standpunkte der
Gesammtwirthschaft." _Volkswirthschaftliche Zeitfragen_, Jahrgang
10, Heft 8. Berlin, 1889.
Hildebrand, Richard. Über das Problem einer allgemeinen
Entwicklungsgeschichte des Rechts und der Sitte. Graz, 1894.
------ Recht und Sitte auf den verschiedenen wirthschaftlichen
Kulturstufen. I. Theil. Jena, 1896.
Hitchcock, Romyn. "The Ainos of Yezo, Japan." _Report of the
Smithsonian Institution_ for 1890, 429-502, _Report of U.S. National
Museum_. Washington, 1891.
Hoffman, Walter James. "The Menomini Indians." _XIV. Report of the
Bureau of Ethnology_, Part I. Washington, 1896.
Hölder, E. Die römische Ehe. Zurich, 1874.
Honegger, J. J. Grundsteine einer allgemeinen Culturgeschichte der
neuesten Zeit. 5 vols. Leipzig, 1868-74.
Hotman, Antoine. De veteri ritu nuptiarum. (Published and bound with
Brissonius's two works.) Lugduni Batavorum, 1641.
Hotman, François. De sponsalibus. (Published and bound with the
preceding.)
------ De ritu nuptiarum et jure matrimoniorum. (Published and bound
with the preceding.)
Houzeau, J. C. Études sur les facultés mentales des animaux. Mons,
1872.
Howard, Clifford. Sex Worship. 2d ed. Washington, 1898.
Howitt, A. W. "Australian Group Relations." _Report of the
Smithsonian Institution_ for 1883, 797-824. Washington, 1885.
Howitt, A. W. "Remarks on the Class Systems Collected by Mr.
Palmer." _Journal of the Anthropological Institute_, XIII, 335-46.
London, 1884.
------ "Further Notes on the Australian Class Systems." _Ibid._,
XVIII, 31-66. London, 1889.
Howitt, A. W., and Fison, Lorimer. "From Mother-Right to
Father-Right." _Ibid._, XII, 30-44. London, 1882.
------ "On the Deme and the Horde." _Ibid._, XIV, 142-68. London,
1885.
Hozumi, N. Ancestor-Worship and Japanese Law. Tokio, 1902.
Hruza, Ernst. Beiträge zur Geschichte des griechischen und römischen
Familienrechts. I, "Ehebegründung nach attischem Rechte." Erlangen
and Leipzig, 1892. II, "Polygamie und Pellikat nach griechischem
Rechte." _Ibid._, 1894.
Huc, M. The Chinese Empire. 2 vols. London, 1855.
Humboldt, Alexandre de. Vues de Cordillères, et monuments des
peuples indigènes de l'Amérique. Large folio. Paris, 1810.
[Hurtant, P. T. N.]. Coup d'œil anglois sur les cérémonies du
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_Sitzungsberichte der königlichen preussischen Akademie der
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Walpole, Spencer. A History of England. 6 vols. London, 1890.
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Walton, Frederick Parker. Scotch Marriages, Regular and
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------ A Handbook of Husband and Wife According to the Law of
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III. MATRIMONIAL INSTITUTIONS IN THE UNITED STATES
A. MANUSCRIPTS
In the office of the Clerk of Courts, Middlesex County, Mass.:
Files of the County Court for Middlesex County, 1655-91.
Records of the County Court for Middlesex County, 1649-86. 4
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Records of the Court of General Sessions of the Peace for
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In the office of the Clerk of the Supreme Judicial Court for the
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Early Court Files of Suffolk, 1629-1800. A collection of files
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Judicial Court. Several hundred volumes for the colonial and
provincial periods.
Records of the Court of General Sessions of the Peace for the
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fragments, 1738-80.
Minute Books of the Court of General Sessions for the County of
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Records of the Superior Court of Judicature, Court of Assizes
and General Goal Delivery in the Province of Massachusetts Bay,
1692-1780. 33 vols., folio. Vol. II also contains records of
various courts, 1686-87.
Records of the Governor and Council, or of the Council, relating
to Divorces, 1760-86. 1 vol., folio, marked "Divorce."
In the Boston Athenæum:
Records of the County Court of Suffolk County, October, 1671, to
April, 1680.
In the New York State Library, Albany:
New York Colonial Manuscripts: Dutch, 1630-64; English,
1664-1776.
Marriage License Bonds, for the Provincial Period. _Ca._ 40 vols.
B. BOOKS AND ARTICLES
Adams, Charles Francis. Some Phases of Sexual Morality and Church
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------ Three Episodes of Massachusetts History. 2 vols. Boston, 1893.
Adams, Marion. Courtship and Marriage in Colonial New England. A
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Albany, Annals of. Joel Munsell, compiler. 10 vols. Albany, 1850-59.
Albany, Collections on the History of, from its Discovery to
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4 vols. Albany, 1865-71.
Andrews, Andrela Lilian. Studies in Sewall's Diary. A Thesis in the
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Andros Tracts. A Collection of Pamphlets and Official Papers, issued
during the period between the overthrow of the Andros Government
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_Publications of the Prince Society._ 3 vols. Boston, 1868-74.
Applegarth, A. C. "Quakers in Pennsylvania." _Johns Hopkins
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Arnold, S. G. History of the State of Rhode Island. 2 vols. New
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Atwater, E. E. A History of the Colony of New Haven. New Haven, 1881.
Bacon, Leonard. The Genesis of the New England Churches. New York,
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Bailey, Frederick W. Early Connecticut Marriages as Found on Ancient
Church Records Prior to 1800. New Haven, [1896].
------ Early Massachusetts Marriages Prior to 1800 as Found on the
Official Records of Worcester County. First Book. New Haven, [1897].
Bailey, Sarah Loring. Historical Sketches of Andover, Massachusetts.
Boston, 1880.
Ballard, E. A. (editor). The Act Relating to Marriage Licenses,
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Bancroft, George. History of the United States of America. 6 vols.
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Bancroft, H. H. The Native Races of the Pacific States. 5 vols. New
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Bartlett, Jonathan. Remarks on the Question, Is it lawful to marry
the sister of a deceased wife? Bridgeport, 1814.
Belknap, Jeremy. The History of New Hampshire. Dover, 1812.
------ "Queries respecting the Slavery and Emancipation of Negroes
in Massachusetts, proposed by the Hon. Judge Tucker of Virginia,
and answered by the Rev. Dr. Belknap (1795)." 1 _Massachusetts
Historical Collections_, IV, 191-211. Reprinted, Boston, 1835.
Bishop, J. P. New Commentaries on Marriage, Divorce, and Separation.
2 vols. Chicago, 1891.
Bliss, W. R. Colonial Times on Buzzard's Bay. Boston, 1888.
------ Side Glimpses from the Colonial Meeting-House. Boston, 1896.
Booth, Mary L. History of the City of New York from its Earliest
Settlement to the Present Time. New York, 1859.
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Bradford, William. History of Plymouth Plantation. Boston, 1856.
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Brooks, H. M. The Olden Time Series. The Days of the Spinning-Wheel
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Browne, W. Hardcastle. A Digest of Statutes, Decisions, and Cases
throughout the United States upon the Subjects of Divorce and
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------ A Commentary on the Law of Divorce and Alimony. Philadelphia,
1890.
Bruce, P. A. Economic History of Virginia in the Seventeenth
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Buford, H. M. The Rights of Property of Married Women under the Laws
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Campbell, Douglas. The Puritan in Holland, England, and America. 2
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Carlier, Auguste. Le mariage aux États-Unis. Paris, 1860.
------ Histoire du peuple américain. 2 vols. Paris, 1864.
------ Marriage in the United States. Trans. by B. Joy Jeffries.
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Carroll, B. R. Historical Collections of South Carolina. 2 vols. New
York, 1836.
Chalmers, George. Political Annals of the Present United Colonies.
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------ "Christian Marriage." _Church Quarterly Review_, XII, 1-35.
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Clericus (pseud.). Reasons in favor of the erasure of the law which
forbids a man to marry his deceased wife's sister. New York, 1827.
------ The argument of Domesticus [pseud. of Alexander McClelland]
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New London, 1784.
------ General Court. Code of 1650, to which are added Extracts from
Laws and Judicial Proceedings of New Haven Colony commonly called
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------ The Code of 1650, being a compilation of the earliest laws of
the General Court. Hartford, 1836.
------ The Book of the General Laws for the People within the
Jurisdiction of Connecticut; collected out of the Records of the
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original edition in the possession of Mr. Geo. Brinley. Hartford,
1865.
------ The Public Records of the Colony of, 1636-1780. Ed. by J. H.
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Convers, D. Marriage and Divorce in the United States. Philadelphia,
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------ Famous Divorces of All Ages. Lowell, 1878.
------ "Divorces and Divorce Laws of the Fathers of New England."
_Albany Law Journal_, XX, 110-13, 131-33. Albany, 1879.
------ Our Divorce Courts: Their Origin and History; Why they are
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Davis, Andrew McFarland. The Law of Adultery and Ignominious
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------ Certain Additional Notes ... on ... Ignominious Punishments
and the Massachusetts Currency. From the _Proceedings of the
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as Seen in its Literature. New York, 1880.
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Drake, S. A. The Making of New England, 1580-1643. New York, 1887.
------ Old Landmarks of Boston. Boston, 1889.
Drake, Samuel G. The History and Antiquities of the City of Boston.
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Du Bois, W. E. Burghardt. "The Suppression of the African
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Dunton, John. The Life and Errors. 2 vols. Westminster, 1818.
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------ "Letters Written from New England A. D., 1686." _Prince
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Boston, 1867.
Durfee, Thomas. Gleanings from the Judicial History of Rhode Island.
Providence, 1883.
Earle, Alice Morse. "Old-Time Marriage Customs in New England."
_Journal of American Folk-Lore_, VI, 97-102. Boston, 1893.
------ Customs and Fashions in Old New England. New York, 1894.
------ Colonial Days in Old New York. New York, 1896.
------ "Among Friends." _New England Magazine_, XIX, 18-23. Boston,
1898.
Edes, B. H. H. "Charlestown in the Provincial Period." In Memorial
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Edwards, Jonathan. A Faithful Narrative of the Surprising Work of
God in the Conversion, etc. With a Large Preface by Dr. Watts and
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Eggleston, Edward. "Courtship and Marriage in the Colonies." In
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Ellis, G. E. The Puritan Age in Massachusetts. Boston, 1888.
Essex Institute. Historical Collections. 37 vols. Salem, 1859-1901.
Evans, Hugh Davey. A Treatise on the Christian Doctrine of Marriage.
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1897.
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------ Leviticus xviii and Marriage Between Affines. [Troy, 1886.]
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Hawthorne, Nathaniel. Grandfather's Chair. Boston, 1893.
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_Historical Magazine and Notes and Queries Concerning the
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------ Seward, Clarence A. Answers to the Interrogatories Propounded
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Tourneur, V. Quelques mots sur le divorce. Reims, 1848.
Trail, R. T. Sexual Physiology and Hygiene. Glasgow and London,
1897.
Transactions of the National Association for the Promotion of
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[Tubermont, Guérin de]. Traité de contrats de mariage. Paris,
1708.
Turquan, V. "Résultats statistiques de cinq années de divorce."
_L'économiste français_, October 26, 1889, 505-7. Paris, 1889.
Twining, Louisa. "Women as Public Servants." _Nineteenth
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Ussher, R. Neo-Malthusianism. An Enquiry into That System with
Regard to its Economy and Morality. London. 1898.
Valerio, Agostino. Institutione d'ogni stato lodeuole delle donne
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Van de Warter, E. "The Relations of Women to the Professions and
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1875.
Vanness, E. A Digest of the Laws of New York and New England, on
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Varigny, C. de. The Women of the United States. New York 1895.
Veblen, Thorstein. The Theory of the Leisure Class. An Economic
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Venables, Gilbert. "Civil and Religious Marriage." _National
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Vermont. Registration Reports, 1857-1896. Burlington and
Montpelier, 1859-97.
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Vidieu, Auguste. Familie et divorce. Paris, [1879].
Volkmar, F. N. Philosophie der Ehe. Halle, 1794.
Vortmann, T. Die Reform der Ehe. Zurich, 1894.
Vraye, Paul, and Gode, Georges. Le divorce et la séparation du
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Waddilove, A. "Shall Marriage Be Made Compulsorily a Civil
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Wade, John. Woman, Past and Present. London, 1859.
Walker, Alexander. Woman Physiologically Considered as to Mind,
Morals, Marriage, Matrimonial Slavery, Infidelity, and Divorce.
2d ed. London, 1840.
------ Intermarriage. Birmingham, 1897.
Wallace, Alfred R. "Human Selection." _Fortnightly Review_,
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Walter, John. Christian Marriage: Its Open and Secret Enemies in
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Walton, C. S. "The Status of the Wife in International
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Ward, Lester F. Dynamic Sociology. 2 vols. New York, 1883.
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------ Pure Sociology. A Treatise on the Origin and Spontaneous
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Wardell-Yerburgh, O. P. (editor). Marriage Addresses and Marriage
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Warner, Amos G. American Charities. A Study in Philanthropy and
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Watt, F. "Some Disused Roads to Marriage." _New Review_, XIV, 162
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Weber, J. K. Das in Deutschland, der Schweiz und Oesterreich
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Webster, Thomas. Woman Man's Equal. With an Introduction by
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Weissbrodt, Karl. Die eheliche Pflicht. 6th ed. Berlin, 1899.
Welles, Charles Stuart. The New Marriage and Other Uniform Laws.
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Wertheimer, Julius. "Homiculture." _Nineteenth Century_, XXIV,
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Westbrook, R. B. Marriage and Divorce. Philadelphia, 1883.
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Wharton, F. A Treatise on the Conflict of Laws. 2d ed. Philadelphia,
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Whitaker, Edward. "How the People Get Married." _Gentleman's
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White, Frances Emily. "Woman's Place in Nature." _Popular Science
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Whitmore, H. J. "Statutory Restraints on the Marriage of Divorced
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Whitney, Henry C. Marriage and Divorce--The Effects of Each on
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Wilcox, Delos Franklin. Ethical Marriage. A Discussion of the
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Wilpert, James von. Die Ehe der Zukunft. Leipzig, 1898.
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Wollstonecraft, Mary. Thoughts on the Education of Daughters with
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------ A Vindication of the Rights of Men, in a Letter to the Right
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------ A Vindication of the Rights of Woman: With Strictures on
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Fawcett, New York, 1890.
Woman's Influence. De l'influence des femmes dans l'ordre civil et
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Woman, An Essay on the Learning, Genius and Abilities of the Fair
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Wood, Thomas D. Some Controlling Ideals of the Family Life of the
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------ See Martin.
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Social Science_, XIV, 129-35. Boston and New York, 1881.
------ Divorce and Divorce Legislation. 2d ed. New York, 1882.
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CXXXVI, 305-25. New York, 1883.
Woolson, Abba Goold. Woman in American Society. Boston, 1873.
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States, 1867-86. First Special Report of the Commissioner of Labor.
Washington, 1889; revised, March 7, 1891; 2d ed., without change,
1897.
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Boston, 1891; same in _Lend a Hand_, VII, Boston, 1891. Also
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Divorce." _Forum_, XVII, 484-96. New York, 1894.
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Yelverton, Theresa. "British Marriage Law and Practice." _Galaxy_,
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Zamperini, Luigi. II divorzio considerato nella teoria e nella
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Zane, Charles S. "The Death of Polygamy in Utah." _Forum_, XII,
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Zeballos, Estanislao S. El matrimonio civil. Edicion privada. Buenos
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Zmigrodski, Michael von. La question de la femme c'est la question
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Zuccarelli, A. Divorzio e scienza antropologica. Naples, 1893.
V. SESSION LAWS AND COLLECTED STATUTES USED IN CHAPTERS XVI-XVIII.
_Alabama._--(1) Session Laws: annual, 1818-76; biennial, 1878-1903;
(2) Collected Statutes: Toulmin's Digest, Tahawba, 1823; Aikin's
Digest, Philadelphia, 1833; Clay's Digest, Tuskaloosa, 1843; Code,
Montgomery, 1852, 1877; Code, Nashville, 1887; Code, 2 vols.,
Atlanta, 1897.
_Alaska._--United States Statutes at Large, XXXI, XXXIII; Carter's
Laws, Chicago, 1900.
_Arizona._--(1) Session Laws: annual, 1864-68; biennial, 1871-1903;
(2) Collected Statutes: Howell Code, Prescott, 1865; Bashford's
Compiled Laws, including the Howell Code and the Session Laws,
1864-71, Albany, 1871; Revised Statutes, Prescott, 1887; Columbia,
1901.
_Arkansas._--(1) Biennial Session Laws, 1840-1903; (2) Collected
Statutes: Revised Statutes, Boston, 1838; Digest, Columbia, 1894.
_California._--(1) Session Laws: annual Statutes, 1849-63; biennial
Statutes, 1865-80; Amendments to the Codes, 1873/4-80; Statutes and
Amendments to the Codes, 1881-1903; (2) Collected Statutes: Compiled
Laws, 1850-53, Benicia, 1853; Hittell's General Laws, 1850-64, 4th
ed., San Francisco, 1872; Civil Code, 2 vols., Sacramento, 1872;
Political Code, 2 vols., Sacramento, 1872; Deering's Codes and
Statutes, 4 vols., San Francisco, 1886; Pomeroy's Civil Code, San
Francisco, 1901.
_Colorado._--(1) Biennial Session Laws 1861-1903; (2) Collected
Statutes: Revised Statutes, Central City, 1868; General Laws,
Denver, 1877; General Statutes, Denver, 1883; Mills's Annotated
Statutes, 3 vols., Chicago, 1891; Denver, 1897 (Vol. III).
_Connecticut._--(1) Session Laws: annual to 1887; biennial,
1889-1903; (2) Collected Statutes: Acts and Laws, folio, New London,
1784; Hartford, 1786, 1805; Public Statute Laws, revisions of 1821,
1835, 1838, Hartford, 1821-39; Revised Statutes, Hartford, 1849;
New Haven, 1854; General Statutes, New Haven, 1866, 1875; Hartford,
1887, 1902; Swift's System, 2 vols., Windham, 1795; Swift's Digest,
2 vols., New Haven, 1823, 1851.
_Dakota._--(1) Session Laws: annual, 1862-75; biennial, 1877-89; (2)
Collected Statutes: Levisee's Codes, St. Paul, 1884; Compiled Laws,
Bismarck, 1887.
_Delaware._--(1) Session Laws: annual to 1867; biennial, 1869-1903;
(2) Collected Statutes: Laws, 1700-1813, Vols. I and II, New-Castle,
1797; Vols. III and IV, Wilmington, 1816; Revised Statutes, Dover,
1852; Wilmington, 1874, 1893.
_District of Columbia._--Lovejoy's Compiled Statutes, Washington,
1894; Moore's Code, Washington, 1902.
_Florida._--(1) Session Laws: annual, 1822-66; biennial 1868-1903;
(2) Collected Statutes: Thompson's Manual or Digest, Boston, 1847;
Bush's Digest, Tallahassee, 1872; McClellan's Digest, Tallahassee,
1881; Revised Statutes, Jacksonville, 1892.
_Georgia._--(1) Annual Acts, 1822-1903; (2) Collected Statutes:
Digest, Philadelphia, 1801; Clayton's Compilation, 1800-1810,
Augusta, 1812; Lamar's Laws, 1810-19, Augusta, 1821, Dawson's
Compilation, 1819-29, Milledgville, 1831; Foster's Digest,
Philadelphia, 1831; Prince's Digest, 2d ed., Athens, 1837;
Hotchkiss's Compilation, Savannah, 1845; Cobb's Analysis, New York,
1846; Cobb's Digest, 1851; Cobb's Compilation, New York, 1859; Code,
Atlanta, 1867; Macon, 1873; Atlanta, 1882, 1896.
_Hawaii._--United States Statutes at Large, XXXI; Civil Laws,
Honolulu, 1897; Penal Laws, Honolulu, 1897.
_Idaho._--(1) Session Laws: annual or biennial, 1864-1903; (2)
Collected Statutes: Compiled and Revised Laws, Boise City, 1875;
Revised Statutes, Boise City, 1887; Codes, 4 vols., Boise City, 1901.
_Illinois._--(1) Session Laws: annual, 1821-55; biennial,
1857-1903; (2) Collected Statutes: Laws, Kaskaskia, 1818; Revised
Code, Vandalia, 1827, 1833; Public and General Statutes, Chicago,
1839; Revised Statutes, 1845; Purple's Compilation, 2 vols.,
Chicago, 1856; Statutes, Chicago, 1864; Gross's Statutes, 3 vols.,
Springfield, 1872-74; Starr and Curtis's Annotated Statutes, 3
vols., Chicago, 1896; Jones and Addington's Supplements, 2 vols.,
Chicago, 1902, 1903; Hurd's Revised Statutes, Chicago, 1898, 1899,
1901.
_Indiana._--(1) Session Laws: annual or biennial, 1818-1903; (2)
Collected Statutes: Laws, Corydon, 1818; Revised Laws, Corydon,
1824; Laws, Indianapolis, 1825; Revised Laws, Indianapolis,
1831; Revised Statutes, Indianapolis, 1838, 1843; General Laws,
Indianapolis, 1849; Revised Statutes, 2 vols., Indianapolis, 1852;
Horner's Revised Statutes, 2 vols., Chicago, 1896; Burns's Annotated
Statutes, 3 vols., Indianapolis, 1901.
_Indian Territory._--Carter's Annotated Statutes, St. Paul, 1899.
_Iowa._--(1) Session Laws: annual, 1838-49; biennial, 1851-1902;
(2) Collected Statutes: Revised Statutes, Iowa City, 1843; Code,
Iowa City, 1851; Revision, Des Moines, 1860; Code, Des Moines, 1873;
McClain's Annotated Codes and Statutes, with Supplement, 3 vols.,
Chicago, 1888-92; Annotated Code, Des Moines, 1897; Supplement, 1902.
_Kansas._--(1) Session Laws: annual, 1857-77; biennial, 1879-1903;
(2) Collected Statutes: Statutes, 1855; General Laws, Topeka, 1862;
General Statutes, Lawrence, 1868; Dassler's General Statutes, 2
vols., St. Louis, 1876; Webb's General Statutes, Topeka, 1897;
General Statutes, Topeka, 1901.
_Kentucky._--(1) Annual or biennial Acts to 1902; (2) Collected
Statutes: Littell's Statute Law, 5 vols., Frankfort, 1809-19;
Humphrey's Compendium of the Common Law in Force in Kentucky,
Lexington, 1822; Digest, 2 vols., Frankfort, 1834; Loughborough's
Digest, Frankfort, 1842: Revised Statutes, Frankfort, 1852; Kentucky
Statutes, Louisville, 1894, 1899, 1903.
_Louisiana._--(1) Session Laws: annual, 1805-70; biennial,
1872-1902; (2) Collected Statutes: Acts ... of the Territory of
Orleans (1804), New Orleans, 1805; _ibid._ (1806), New Orleans,
1807; Digest of the Civil Laws Now in Force in the Territory of
Orleans [French and English], New Orleans, 1808; Laws of Las Siete
Partidas, which are still in force in Louisiana, 2 vols., New
Orleans, 1820; Code Civil de l'État de la Louisiane, 1825; Lislet's
General Digest, 2 vols., New Orleans, 1828; Upton and Jennings's
Civil Code, New Orleans, 1838; Revision, New Orleans, 1852; Civil
Code, Baton Rouge, 1853; Revised Civil Code, New Orleans, 1870;
Voorhies's Revised Statutes, New Orleans, 1876; Voorhies's Revised
Laws, New Orleans, 1884; Revised Civil Code, New Orleans, 1888;
Wolff's Revised Laws, New Orleans, 1897; Merrick's Revised Civil
Code, 2 vols., New Orleans, 1900.
_Maine._--(1) Public Acts or Acts and Resolves: annual, 1820-81;
biennial, 1883-1903; (2) Collected Statutes: Laws, 2 vols.,
Brunswick, 1821; Vol. III, Portland, 1831; Smith's Laws, 1821-34,
Portland, 1834; Revised Statutes (1840), Augusta, 1841; 2d ed.,
Hallowell, 1847; Bangor, 1857; Portland, 1871, 1884; Freeman's
Supplement to the Revised Statutes, 1885-95, Portland, 1895.
_Maryland._--(1) Session Laws: annual to 1868; biennial, 1870-1902;
(2) Collected Statutes: Laws Made Since 1763, folio, Annapolis,
1777; Laws, 1763-87, folio, Annapolis, 1787; Kilty's Laws, 2 vols.,
Annapolis, 1799; Scott and M'Cullough's Maryland Code, 2 vols.,
Baltimore, 1860; Poe's Maryland Code, Baltimore, 1888.
_Massachusetts._--(1) Annual Acts and Resolves, 1780-1903; (2)
Collected Statutes: Public General Laws, November 28, 1780, to
February 16, 1816, 4 vols., Boston, 1807-16; Revised Statutes
(1835), Boston, 1836; Supplement to the Revised Statutes, 1836-53,
Boston, 1854; Supplement to the General Statutes, 2 vols.,
Boston, 1873-78; Public Statutes, Boston, 1882; Supplement to the
Public Statutes, 1882-88, Boston, 1890; Public Laws, 2 vols, and
Index, Boston, 1902; Crocker's Notes on the Public Statutes of
Massachusetts, 2d ed., Boston, 1891.
_Michigan._--(1) Session Laws: Annual Acts to 1851; biennial,
1853-1903; (2) Collected Statutes: Laws of the Territory, 4 vols.,
Lansing, 1871-84; Revised Statutes, Detroit, 1838, 1846; Howell's
General Statutes, 3 vols., Chicago, 1882-90; Miller's Compiled Laws
(1897), 3 vols., Lansing, 1899.
_Minnesota._--(1) Session Laws: annual, 1849-79; biennial,
1881-1903; (2) Collected Statutes: Revised Statutes, St. Paul, 1851;
General Statutes, St. Paul, 1866; _ibid._, 2 vols., St. Paul, 1894.
_Mississippi._--(1) Annual or biennial Session Laws to 1902; (2)
Collected Statutes: Statutes of the Mississippi Territory, Natchez,
1816; Revised Code, Natchez, 1824; Digest, New York, 1839; Statutes,
New Orleans, 1840; Hutchinson's Code, 1798-1848, Jackson, 1848;
Revised Code, Jackson, 1857, 1880; Annotated Code, Nashville, 1892.
_Missouri._--(1) Session Laws: annual, 1820-71; biennial, 1873-1903;
(2) Collected Statutes: Revised Statutes, St. Louis, 1835; Laws
... of the District of Louisiana, of the Territory of Louisiana,
of the Territory of Missouri, and of the State of Missouri to
1824, 2 vols., Jefferson City, 1842; Revised Statutes, St. Louis,
1845; _ibid._, 2 vols., Jefferson City, 1856, 1879; Revised Laws,
Jefferson City, 1889; Revised Statutes, 2 vols., Jefferson City,
1899.
_Montana._--(1) Session Laws: annual, 1864-77; biennial, 1879-1903;
(2) Collected Statutes: Compiled Statutes, Helena, 1888; Booth's
Codes and Statutes, 4 vols., Butte, 1895; Sander's Codes and
Statutes, Helena, 1895.
_Nebraska._--(1) Session Laws, 1855-1903; (2) Collected Statutes:
Statutes in Force August, 1867; Brown's General Statutes, Lincoln,
1873; Brown's Compiled Statutes, Omaha, 1887; Laws, Resolutions, and
Memorials, 1855-87, 3 vols., Lincoln, 1886-87, Brown and Wheeler's
Compiled Statutes, Lincoln, 1891, 1893, 1899.
_Nevada._--(1) Annual or biennial Session Laws, 1861-1903; (2)
Cutting's Compiled Laws, 1861-1900, Carson City, 1900.
_New Hampshire._--(1) Session Laws: annual to 1879; biennial,
1881-1903; (2) Collected Statutes: Laws, Portsmouth, 1797;
Constitution and Laws, Dover, 1805; Laws, Exeter, 1815; Laws,
Hopkinton, 1830; Revised Statutes (1842), Concord, 1843; Compiled
Statutes, Concord, 1853; General Statutes, Manchester, 1867; General
Laws, Manchester, 1878; Public Statutes, Concord, 1891, 1900.
_New Jersey._--(1) Annual Acts, 1779-1903; (2) Collected Statutes:
Patterson's Laws, Newark, 1800; Laws, Trenton, 1821; Elmer's Digest,
Bridgeton, 1838; Statutes, Trenton, 1847; Nixon's Elmer's Digest,
Philadelphia, 1855; Revised Statutes, Trenton, 1874; General
Statutes, 3 vols., Jersey City, 1896.
_New Mexico._--(1) Session Laws: annual, 1851-69; biennial,
1871-1903; (2) Collected Statutes: Revised Statutes, St. Louis,
1865; Compiled Laws, Santa Fé, 1885, 1897.
_New York._--(1) Annual Laws to 1903; (2) Collected Statutes: Laws,
2 vols., folio, New York, 1789; Laws, 3 vols., New York and Albany,
1792-1800; Laws, 6 vols., Albany, 1802-12; Van Ness and Woodworth's
Laws, 2 vols., Albany, 1813; Revised Statutes of 1827-28, 3 vols.,
Albany, 1829; Stover's Code of Civil Procedure, 3 vols., New York,
1892, 1902; Throop and Collin's Revised Statutes, 9th ed., 6 vols.,
New York, 1889-92; Birdseye's Revised Statutes, 3 vols., New York,
1896.
_North Carolina._--(1) Session Laws: annual to 1877; biennial,
1879-1903; (2) Collected Statutes: Martin's Iredell's Public Acts,
1715-1803, 2 vols., Newbern, 1804; Haywood's Manual, Raleigh, 1819;
Laws, 2 vols., Raleigh, 1821; Revised Statutes, 2 vols., Raleigh,
1837; Code, 2 vols., Raleigh, 1883.
_North Dakota._--(1) Annual or biennial Session Laws, 1890-1903; (2)
Revised Codes, Bismarck, 1895, 1899.
_Ohio._--(1) Annual or biennial Session Laws, 1803-1903; (2)
Collected Statutes: Chase's Statutes of Ohio and the Northwest,
Territory, 1788-1833, 3 vols., Cincinnati, 1833-35; Swan's,
Statutes, Cincinnati, 1854; Bates's Annotated Statutes, 3 vols.,
Cincinnati, 1897, 1903.
_Oklahoma._--(1) Biennial Session Laws, 1895-1903; (2) Statutes,
Guthrie, 1893; Wilson's Revised Annotated Statutes, Guthrie, 2
vols., 1903.
_Oregon._--(1) Session Laws: annual, 1843-60; biennial, 1860-1903;
(2) Collected Statutes: Deady and Lane's Organic and Other General
Laws, 1843 ff., n. p., 1874; Hill's Codes and General Laws, 2d ed.,
2 vols., San Francisco, 1892; Bellinger and Cotton's Codes and
Statutes, 2 vols., San Francisco, 1902.
_Pennsylvania._--(1) Session Laws: annual, 1803-79; biennial,
1881-1903; (2) Collected Statutes: Acts of the Assembly, folio,
Philadelphia, 1775; Dallas's Laws, 3 vols., folio, Philadelphia,
1793-97; Laws of the Commonwealth, 1700-1810, 4 vols., Philadelphia,
1810; Cary and Bioren's Laws, 8 vols., Philadelphia, 1803-8; Laws,
from October, 1700, 10 vols., Philadelphia, 1822-44; Pepper and
Lewis's Digest, 1700-1894, 2 vols., Philadelphia, 1896.
_Porto Rico._--Revised Statutes and Codes, San Juan, 1902.
_Rhode Island._--(1) Annual Laws or Acts to 1902; (2) Public Laws,
Providence, 1798, 1822, 1844, 1882, 1896.
_South Carolina._--(1) Annual Session Laws, 1790-1903; (2) Collected
Statutes: Cooper and McCord's Statutes at Large, 10 vols., Columbia,
1837-41; Brevard's Alphabetical Digest, 3 vols., Charleston, 1814;
Revised Statutes, Columbia, 1873, 1894; Code, 2 vols., Columbia,
1902.
_South Dakota._--(1) Annual or biennial Session Laws, 1890-1903; (2)
Grantham's Statutes, 2 vols., Chicago, 1899; Albany, 1901; Revised
Codes, Pierre, 1903.
_Tennessee._--(1) Session Laws: annual to 1873; biennial, 1875-1903;
(2) Collected Statutes: Public Acts ... of North Carolina and
Tennessee, 1715-1813, Nashville, 1815; Scott's Laws, 2 vols.,
Knoxville, 1821; Haywood and Cobb's Statute Laws, 2 vols.,
Knoxville, 1831; Caruther and Nicholson's Compilation, Nashville,
1836; Code, Nashville, 1858, 1884; Shannon's Annotated Code,
Nashville, 1896.
_Texas._--(1) Annual or biennial Session Laws, 1846-1901; (2)
Collected Statutes: Ordinances and Decrees of the Consultation,
Provisional Government of Texas and the Convention ... at
Washington, March 1, 1836, Houston, 1838; Laws of the Republic, 9
vols., Houston, 1838-45; Dallam's Digest, Baltimore, 1845; Revised
Statutes, Galveston, 1879; Revised Civil Statutes, 2 vols., St.
Louis, 1888; Annotated Civil Statutes, Supplement, 1888-93, St.
Louis, 1894; Sayles's Annotated Civil Statutes, 2 vols., St. Louis,
1897; Herron's Supplement, 1903; White's Penal Code, Austin, 1901.
_Utah._--(1) Annual or biennial Session Laws, 1850-1903; (2)
Collected Statutes: Acts, Resolutions, and Memorials, 1850-55, Great
Salt Lake City, 1855; Compiled Laws, Salt Lake City, 1876, 1888;
Revised Statutes, 1898.
_Vermont._--(1) Session Laws: annual Laws or Acts and Resolves,
1787-1868; biennial, 1870-1902; (2) Collected Statutes: Slade's
State Papers ... with Laws, 1779-86, Middlebury, 1823; Laws,
Rutland, 1798; Acts and Laws, Windsor, 1801; Laws, 2 vols.,
Randolph, 1808; Slade's Laws, Windsor, 1825; Revised Statutes,
Burlington, 1840; Williams's Compiled Statutes, Burlington, 1851;
General Statutes, 2d ed., 1870; Vermont Statutes (1894), Rutland,
1895.
_Virginia._--(1) Acts of the Assembly: annual, 1807-79; biennial,
1881-1903; (2) Collected Statutes: Acts, Richmond, 1794, 1803, 1814;
Revised Code, 2 vols., Richmond, 1819; Tate's Digest, Richmond,
1823; Supplement to Revised Code, Richmond, 1833; Tate's Digest, 2d
ed., Richmond, 1841; Code, Richmond, 1849, 1860, 1868, 1873, 1887.
_Washington._--(1) Session Laws: annual to 1869; biennial,
1871-1903; (2) Ballinger's Annotated Codes and Statutes, 2 vols.,
San Francisco, 1897.
_West Virginia._--(1) Annual or biennial Acts, 1863-1903; (2)
Collected Statutes: Kelly's Revised Statutes, 2 vols., St. Louis,
1878; Warth's Code, Charleston, 1887, 1891, 1900.
_Wisconsin._--(1) Session Laws: annual, 1836-83; biennial,
1885-1903; (2) Revised Statutes, Southport, 1849, Chicago, 1858,
1872; Annotated Statutes, 2 vols., Chicago, 1889; Statutes, 2 vols.,
1898.
_Wyoming._--(1) Biennial Session Laws, 1869-1903; (2) Revised
Statutes, Cheyenne, 1887; Laramie, 1899.
GENERAL INDICES
CASE INDEX
The 147 Massachusetts cases of divorce and annulment, tabulated and
discussed in chap. xv, are not included in this index.
Addison's case, ii, 106 n. 1.
Adkinson _v._ Adkinson (Thompson's _Laws of Pa._, vii, 73-75), iii,
99.
Adler _v._ Adler (_San Francisco Law Journal_, July 16, 1900, p. 1),
iii, 151.
Adriaens _v._ Adriaens (_N. Y. Col. MSS._, x, 291, 293), ii, 376.
Alexander's case (_Laws of Md._, 1805, chap. xxxiii), iii, 32.
Allen's case (_MSS. Court Files of Suffolk_, No. 3728), ii, 192
n. 1.
Almond _v._ Almond (4 Randolph, 662; 15 _Am. D._, 781), ii, 369.
Andover _v._ Canton (13 _Mass._, 551, 552), ii, 217 n. 3.
Andrews _v._ Page (3 Heiskell, 653-71), ii, 263; iii, 176.
Andriesen and Vosburgh, ii, 378.
Anonymous (9 C. E. Green, _Eq. Rep._, 19), iii, 106 n. 7.
Askew _v._ Dupree (30 _Ga._, 173), iii, 176.
Att'y Gen. _v._ Chatterton, i, 422 n. 1.
---- _v._ Mollineux, i, 422 n. 1.
Avery's case (_Doc. Rel. to Col. Hist. of N. Y._, xii, 624, 625),
ii, 290, 291.
Bailey _v._ S. (36 _Neb._, 808-14), iii, 177.
Baldingh _v._ Baldingh (_N. Y. Col. MSS._, viii, 415, 417, 419), ii,
376.
Bashaw _v._ S. (1 Yerger, 177-97), ii, 263; iii, 176.
Battersby's case, ii, 106 n. 1.
Baxter's case (_Conn. Col. Rec._, i, 379), ii, 356.
Bayley and Rainer (_MSS. Records of Sup. Court of Jud._, 1752-53,
fol. 190), ii, 176.
Beale _v._ Row (_MSS. Records of Co. Court of Midd._, iv, 218), ii,
202 n. 3.
Beamish _v._ Beamish (9 _House of Lords Cases_, 274-358), i, 289,
318-20.
Becke _v._ Bradwicke (_Mass. Col. Rec._, i, 104), ii, 200, 201.
Beckwith _v._ Beckwith (_Conn. Col. Rec._, i, 275), ii, 355, 356.
Beeck _v._ Verleth (_Records of New Amsterdam_, i, 159, 160, 164,
165, 173, 174; _Doc. Rel. to Col. Hist. of N. Y._, xiv, 291),
ii, 274-77.
Bell _v._ Bell (_Opinions U. S. Sup. Court_, No. 13, p. 551), iii,
207.
Bellingham's case, ii, 210, 211; iii, 173.
Belou _v._ Belou (_R. I. Col. Rec._, ii, 543), ii, 364.
Benkert _v._ Benkert (32 _Cal._, 467), iii, 137 n. 2.
Besems _v._ Nieuwland, ii, 281.
Beverlin _v._ Beverlin (29 _W. Va._, 732-40), iii, 180, 182.
Beyer's case, i, 374 n. 5.
Blackburn _v._ Crawfords (3 Wall., 175), iii, 176.
Blake's case (_MSS. Court Files of Suffolk_, No. 531), ii, 159, 160.
Blanchard _v._ Lambert (43 _Ia._, 228-32), ii, 470; iii, 177.
Bostwick _v._ Blades (4 _Am. Law Rec._, 729), ii, 480 n. 6.
Bowman _v._ Bowman (24 _Ill. App._, 165-78), iii, 177.
Boylan _v._ Deinzer (18 Stewart, 485), ii, 475 n. 1; iii, 106 n. 6.
Bruner _v._ Bruner (_Laws of Ind._, 1842, 117), iii, 97.
Bullock _v._ Bullock (122 _Mass._, 3), iii, 146 n. 2.
Bunting _v._ Lepingwell (2 Coke, _Reports_, 355-59), i, 289, 376
n. 2.
Burge _v._ Burge, ii, 349, 350.
Burr _v._ Burr (10 Paige, 20, 35), ii, 382 n. 2.
Boarman's case, ii, 210.
Brittanie and Latham (_Records of Court of Assistants_), ii, 170
n. 3.
Brook _v._ Brook (House of Lords, March, 1861), ii, 96 n. 5.
Brown _v._ Westbrook (27 _Ga._, 102), ii, 376 n. 1.
Campbell _v._ Gullatt (43 _Ala._, 57), iii, 176.
Carmichael _v._ S. (12 _Ohio_, 553-61), iii, 177.
Case _v._ Case (17 _Cal._, 598), ii, 467 n. 1.
Caterall _v._ Caterall (1 Robinson, 580, 581), ii, 367 n. 2.
Caterall _v._ Sweetman (1 Robinson, 321), ii, 304 n. 4.
Chapman _v._ Chapman (16 _T. C. A._, 384), iii, 176.
Cheney _v._ Arnold (15 _N. Y._, 345), iii, 183.
Cheseldine _v._ Brewer (1 Har. and McH., 152), ii, 262 n. 5; iii,
180.
Chickering _v._ Chickering (_Acts and Laws_, 575, 576), iii, 5.
Christie _v._ Christie (53 _Cal._, 26), iii, 137 n. 2.
Clark _v._ Clark (8 Cushing, 385), iii, 146 n. 2.
Clark _v._ Cassidy (61 _Ga._, 662), iii, 176 n. 3.
Clark and Dudley (_MSS. Records of Sup. Court of Jud._, 1757-59,
655), ii, 178 n. 5.
Cochrane _alias_ Kennedy _v._ Campbell (1 Paton, 519-32), i, 448 and
n. 1.
Coggeshall's case (_R. I. Col. Rec._, i, 319), ii, 361.
Colefix's case (_MSS. Records of Sup. Court of Jud._, iv, foll. 355,
356), ii, 175.
Colston _v._ Quander (1 _Va. Decisions_), iii, 182.
Colvin _v._ Colvin (2 Paige, 385-87), iii, 152 n. 3.
Colwell _v._ Colwell (_R. I. Col. Rec._, ii, 204), ii, 363 n. 2.
Commonwealth _v._ Aves (18 Pickering, 208), ii, 217 n. 2.
---- _v._ Jackson (11 Bush., _Ky._, 679), iii, 180.
---- _v._ Knowlton (2 _Mass._, 530, 534), ii, 366.
---- _v._ Munson (127 _Mass._, 459-71; 34 _Am. R._, 411), iii, 179.
---- _v._ Stump (53 _Pa._, 132-38), iii, 177.
Coventry's case (_Plym. Col. Rec._, iii, 5), ii, 162.
Crane _v._ Meginnis (1 Gill and Johnson, 468; 19 _Am. D._, 237-42),
ii, 374 n. 4.
Crawford _v._ Crawford (11 _P. D._, 150-58), ii, 113 n. 4.
Connors _v._ Connors (40 _Pac._, 966), iii, 182.
Constantine _v._ Windle (6 Hill, 176), ii, 304 n. 2.
Cumby _v._ Henderson (6 _T. C. A._, 519-23; 25 _S. W._, 673), iii,
177.
Dalrymple _v._ Dalrymple (2 Haggard, 54-137), i, 298.
Daniels _v._ Sams (17 _Fla._, 487-97), iii, 176.
Daniels _v._ Bowin _et ux._ (_MSS. Records of Sup. Court of Jud._,
1764-65, fol. 4), ii, 202.
Davis's case (_Mass. Col. Rec._, i, 198), ii, 159.
Deacon _v._ Allen (_Mass. Col. Rec._, iv, Part ii, 458), ii, 202.
Delheith's case (Year Book, 34 Ed. I.), i, 289.
Denison _v._ Denison (35 _Md._, 361, 379), ii, 262 n. 5; iii, 180.
Devoe _v._ Devoe (51 _Cal._, 543), iii, 138 n. 1.
Dickerson _v._ Brown (49 _Miss._, 357), iii, 180.
Diggs _v._ Wormley (21 _D. C._, 477, 485), iii, 176.
Dimmett _v._ Dimmett (_Md. Laws_, 1806-7, chap. lxix), iii, 32, 33.
Dircksen's case (_N. Y. Col. MSS._, viii, 1057), ii, 280.
Doolittle's case (_MSS. Records of the Supreme Judicial Court_,
1781-82, leaf 41), ii, 176.
Dumaresly _v._ Fishly (3 A. K. Marshall, 368-77), iii, 180.
Dumas _v._ S. (14 _Tex. Cr. App._, 464-74), iii, 176.
Dumbarton _v._ Franklin (19 _N. H._, 257), iii, 179.
Duncan _v._ Duncan (10 _Ohio_, 181), ii, 471 n. 2; iii, 183.
Dunham's case, ii, 167, 168.
Duvall's case (_Laws of Ind._, 1838, 406), iii, 96.
Duyts's case (_N. Y. Col. MSS._, viii, 1051), ii, 280.
Dyer _v._ Brannock (66 _Mo._, 391; 27 _Am. R._, 359), iii, 176.
Edwards _v._ Edwards (_Conn. Col. Rec._, iv, 37, 52, 53, 59), ii,
357, 358.
Eidmuller _v._ Eidmuller (37 _Cal._, 394), iii, 137 n. 1.
Emerson's case (_Mass. Col. Rec._, i, 232), ii, 161 n. 3.
Estate of Beverson (47 _Cal._, 621), ii, 467 n. 1.
---- of McCausland (52 _Cal._, 568), ii, 467 n. 1.
---- of Wood (137 _Cal._, 129), iii, 151.
Estill _v._ Rogers (1 Bush., _Ky._, 62), iii, 180.
Evans _v._ Evans (2 _Notes of Cases_, 475, 476), ii, 107 n. 3.
Fabricius (Fabritius) _v._ Fabricius, ii, 380.
Fairbanks and Armstrong (_MSS. Records of Sup. Court of Jud._,
1752-53, fol. 181), ii, 178 n. 5.
Fairfeild's petition (_Mass. Col. Rec._, iii, 67, 161, 273), ii,
174, note.
Farnshill _v._ Murray (1 Bland, 479; 18 _Am. D._, 344), ii, 373.
Feilding's case (Howell, _State Trials_, xiv, 1327 ff.), i, 447.
Fenton _v._ Reed (4 Johnson, 51; 4 _Am. D._, 244), ii, 303 n. 3, 304
n. 2; iii, 175.
Fergusson _v._ Fergusson (_Md. Laws_, 1806-7, chap. lxxvi), iii, 33.
Finch's case, ii, 214.
Finch _v._ Finch (14 _Ga._, 362), ii, 376 n. 1.
Fiscal _v._ Doxy (_Doc. Rel. to Col. Hist. of N. Y._, ii, 691, 692),
ii, 279, 303 n. 3.
---- _v._ Fabricius (_Doc. Rel. to Col. Hist. of N. Y._, xii, 512),
ii, 278, 303 n. 3.
Fleming's case (_MSS. Records of Sup. Court of Jud._, 1740-42, fol.
264), ii, 178.
Flora's case (_MSS. Records of Sup. Court of Jud._, 1757-59, 295),
ii, 219 n. 1.
Floyd _v._ Calvert (53 _Miss._, 37), iii, 180.
Foljambe's case (Moore, _Cases_, 683), ii, 82, 83.
Forster _v._ Forster (3 Swabey and Tristram, 158-60), ii, 113.
Fountaine and Harvie, i, 422 n. 1.
Foxcroft's case (1 Roll, _Abridgment_, 353), i, 289.
Fryer _v._ Fryer (Richardson, _Equity Cases_, 92 ff.), iii, 176.
Fulcher _v._ Fulcher (1 _Calendar of Va. State Papers_, 29), ii,
368.
Fulkerson _v._ Day (15 _Philadelphia_, 638), ii, 457.
Fuller and Parker (_MSS. Records of Sup. Court of Jud._, iii, fol.
206), ii, 175.
Galwith _v._ Galwith (4 Har. and McH., 477, 478), ii, 371, 372.
Gardner _v._ Gardner (23 _Nev._, 207), iii, 143 n. 2.
Garland's appeal (_MSS. Court Files of Suffolk_, No. 1412), ii, 187
n. 1.
Gay _v._ Gay (_Acts of Va._, 1826-27, 126), iii, 36 n. 2.
Gennings's case (_R. I. Col. Rec._, i, 312), ii, 361 n. 3.
Gifford's case, ii, 210.
Gillet _v._ Gillet (14 _P. D._, 158), ii, 177 n. 6; iii, 173 n. 5.
Glover _v._ Glover (_Plym. Col. Rec._, vi, 190), ii, 351.
Graham _v._ Bennett (2 _Cal._, 503), ii, 467 n. 1.
Graves _v._ Graves (36 _Ia._, 310), iii, 127.
Green _v._ Norment (5 Mackey, 80-92), iii, 176.
Grisham _v._ S. (2 Yerger, 589, 592), ii, 263, note; iii, 176.
Grubb _v._ Grubb (_Pa. Col. Rec._, ix, 564, 566, 567, 568, 580),
ii, 387.
Grymes's case (Hening, _Statutes_, i, 551), ii, 236 n. 3.
Hagborne's case (_MSS. Court Files of Suffolk_, No. 531), ii, 161.
Hall's case (_MSS. Records of Co. Court of Suffolk_, 9), ii, 160.
Hallet _v._ Hallet (_N. Y. Col. MSS._, xxiii), ii, 380.
Hantz _v._ Sealey (6 Binn., 405), iii, 177.
Hardenberg _v._ Hardenberg (14 _Cal._, 654), iii, 137 n. 2.
Harding's case (_MSS. Records of Sup. Court of Jud._, 1725-30, fol.
274), ii, 178 n. 5.
Hargroves _v._ Thompson (31 _Miss._, 211), iii, 180.
Harris _v._ Hicks (2 Salkeld, 548), ii, 95 n. 4.
Haskell _v._ Haskell (54 _Cal._, 262), iii, 138 n. 2.
Hathaway's case (_Laws of Minn._, 1849, 89), iii, 97.
Hayes _v._ Watts (3 Phillim., 43), i, 463.
Head _v._ Head (2 Kelly, _Ga. Reports_, 191-211), ii, 375, 376;
iii, 46-50.
Helffenstein _v._ Thomas (5 Rawle, 209), ii, 457.
Helms _v._ Franciscus (2 Bland, 544; 20 _Am. D._, 402), ii, 370
n. 1, 373.
Henshaw and Hall (_MSS. Records of Co. Court of Midd._, iii, 21),
ii, 155.
Hervey _v._ Moseley (7 Gray, 449), iii, 191 n. 2.
Hewett _v._ Bratcher, i, 463.
Hewitt _v._ Hewitt (1 Bland, 101), ii, 374 n. 3.
Hicks _v._ Hicks (_N. Y. Col. MSS._, vi, 49), ii, 376.
Hill _v._ Good (2 _Virginia Cases_, 61), ii, 434 n. 3.
Hills's case (_MSS. Records of Co. Court of Midd._, i, 80), ii,
211 n. 2; iii, 173.
Hinckley _v._ Ayers (105 _Cal._, 357), ii, 467 n. 1.
Hiram _v._ Pierce (45 _Me._, 367), iii, 179.
Holbrooke and Cooke (_MSS. Records of Court of Gen. Sessions of
Suffolk_, i, 234), ii, 192 n. 1.
Hollis _v._ Wells (3 _Pa. Law Journal_, 29-33), ii, 272.
Holmes _v._ Holmes (1 Abb., _Cir. Ct._ (U. S.), 525), iii, 181.
---- (6 _La._, 463), iii, 176.
Holtz _v._ Dick (42 _Ohio_, 791), ii, 472 n. 7.
Howarth _v._ Howarth (9 _P. D._, 218-31), ii, 113 n. 5.
Howland's case (_Plym. Col. Rec._, iv, 140, 158, 159), ii, 163.
Howsley's case, i, 424.
Huitt's case (_Conn. Col. Rec._, ii, 129), ii, 356.
Humbert _v._ Trinity Church (24 Wendell, 625), ii, 304 n. 2.
Hume and Lander, ii, 59 n. 2.
Hutchins _v._ Kimmel (31 _Mich._, 126-35; 18 _Am. R._, 164-69), iii,
177.
Ingersoll _v._ McWillie (9 _T. C. A._, 543, 553; 30 _S. W._, 56),
iii, 177.
_In re_ Briswalter (72 _Cal._, 107), ii, 467 n. 1.
---- McLaughlin's Estate (4 _Wash._, 570; 30 _Pac. R._, 651), iii,
181.
---- Marriage License Act (15 _Pa. C. C._, 345), ii, 485 n. 4.
---- Wilbur's Estate (8 _Wash._, 35), iii, 181.
Iron's case (_MSS. Records of Co. Court of Midd._, i, 18), ii, 159.
Irons's case (_MSS. Records of Co. Court of Suffolk_, 255, 256),
ii, 166.
Israel _v._ Arthur (18 _Col._, 158, 164), iii, 177.
Jack's case (_MSS. Records of Gen. Sessions of Suffolk_, Jan. 30,
1709/10), ii, 219 n. 1.
Jackson's case (_MSS. Records of Co. Court of Suffolk_, 113), ii,
159.
Jackson _v._ Gilchrist (15 Johnson, 89), ii, 304 n. 2.
Jackson _v._ Jackson (80 _Md._, 176-96), iii, 180.
Jamison _v._ Jamison (4 _Md. Ch. Reports_, 289, 295), ii, 274 n. 2.
Jansen, G., case of (_N. Y. Col. MSS._, viii, 1055), ii, 280.
Jansen, Y., case of (_N. Y. Col. MSS._, viii. 1049), ii, 280.
Jenkins _v._ Atkinson (_Plym. Col. Rec._, v, 159), ii, 351.
Jennings _v._ Webb (8 _App. D. C._, 43, 56), iii, 176.
Jewell _v._ Jewell (1 Howard, 219-34), iii, 178.
Johns _v._ Johns (57 _Miss._, 530), iii, 66 n. 3.
Johnson's case (_MSS. Records of Co. Court of Midd._, i, 206, 249),
ii, 166 n. 1.
Johnson _v._ Johnson (1 Coldw., 626), iii, 176.
---- (14 _Cal._, 459), iii, 137 n. 1.
Johnson _v._ Parker (3 Phillim., 39), i, 463 n. 4.
Jones's case (_Law Reports_, x, 733), ii, 303 n. 3.
Jones _v._ Jones (28 _Ark._, 19-26), iii, 176.
Kehmle _v._ Kehmle (_Pa. Col. Rec._, x, 26, 42, 104, 105), ii, 387.
Kelley _v._ Kelley (18 _Nev._, 48), iii, 143 n. 2.
Kelley _v._ Murphy (70 _Cal._, 560), ii, 467 n. 1.
Kennedy _v._ Kennedy (73 _N. Y._, 363), iii, 105.
Kilburn _v._ Kilburn (89 _Cal._, 46), ii, 467 n. 1.
King _v._ Inhabitants of Birmingham (8 B. and C., 29), ii, 304 n. 4.
Kinge and Jackson (Hening, _Statutes_, i, 45, note), ii, 236 n. 3.
Koch _v._ Vorst (_Records of New Amsterdam_, i, 54), ii, 281, 282.
Laers's case (_Doc. Rel. to Col. Hist. of N. Y._, xii, 359, 360),
ii, 277.
Laers _v._ Laers (_Doc. Rel. to Col. Hist. of N. Y._, xii, 359),
ii, 377.
Lane _v._ Lane (_Doc. Rel. to Col. Hist. of N. Y._, ii, 704), ii,
376, 377.
Lantsman _v._ Lantsman (Valentine, _Manual_, 1852, 486, 487, 489,
494), ii, 378, 379.
Laramie's case (_Laws of Minn._, 1849, 89), iii, 97.
Larkum _v._ Larkum (_Conn. Col. Rec._, x, 168), ii, 358, 359.
Latour _v._ Teesdale (8 Taunt., 830), ii, 367.
Lauderdale Peerage case (_Law Reports_, x, 692-762), ii, 301-6,
367 n. 2.
Lawrence and Lawton (_MSS. Records of Sup. Court of Jud._, 1763-64,
fol. 90), ii, 177 n. 1.
Lee's case (_MSS. Records of Court of Gen. Sessions of Suffolk_, i,
202), ii, 185 n. 1.
Letters _v._ Cady (10 _Cal._, 530), ii, 467 n. 1.
Lewis's case (_Early Records of Muddy River_, 69), ii, 364.
Ligonia _v._ Buxton (2 _Me._, 95), iii, 179.
Littleton _v._ Tuttle (4 _Mass._, 128, note), ii, 217 n. 2.
Londonderry _v._ Chester (2 _N. H._, 268-81), iii, 179.
Long's case (_R. I. Col. Rec._, ii, 99 ff.), ii, 361-63.
Loring's case (_MSS. Records of Co. Court of Suffolk_, 301), ii,
166.
Lutz _v._ Lutz (31 _N. Y._, 718), iii, 105 n. 1.
Macclesfield's case, ii, 104.
McCormick's case (_Compilation_, 385, 386), iii, 45.
McCreery _v._ Davis (44 _S. C._, 195-227), iii, 78.
McFarland _v._ McFarland (2 _N. W. Rep._, 269), iii, 142 n. 4.
McJunkin _v._ McJunkin (3 _Ind._, 30), iii, 147 n. 2.
McLennan _v._ McLennan (31 _Ore._, 480), iii, 151 n. 2.
Macnamara's case (2 Bland, 566), ii, 373.
McPherson _v._ S. (56 _Kan._, 140), iii, 129 n. 2.
McQuigg _v._ McQuigg (13 _Ind._, 294), iii, 147 n. 2.
Mahone _v._ Mahone (19 _Cal._, 626, 629), iii, 138 n. 2.
Manning's case (_MSS. Files of Co. Court of Midd._, June, 1664), ii,
190 n. 1.
Martin _v._ Ryan (2 Pinney, _Wis. Reports_, 24), ii, 468 n. 2.
Mason _v._ Mason (1 Edw., _Ch._, 278), iii, 105 n. 1.
Mead _v._ Mead (_Resolves of Conn._, 1837, 3); ii, 359 n. 6.
Mearle's case (_N. C. Col. Rec._, i, 626), ii, 251 n. 1.
Meister _v._ Moore (96 _U. S._, 76-83), iii, 178.
Messenger _v._ Darlin (_N. Y. Col. MSS._, xxiii, 248), ii, 377.
Milford _v._ Worcester (7 _Mass._, 48-58), ii, 303 n. 3; iii, 179.
Miller's case (_Plym. Col. Rec._, iii, 75), ii. 161 n. 3.
Moffat's case, ii, 106 n. 2.
Moore _v._ Hegeman (92 _N. Y._, 521-29), iii, 145 n. 2, 152 n. 3.
Moore _v._ Moore (8 Abb., _N. C._, 171-73), iii, 152 n. 3.
Moran _v._ Moran (_Acts of Va._, 1847-48, 165-67), iii, 36.
Morrill _v._ Palmer (68 _Vt._, 1-23), iii, 179.
Morris _v._ Morris (14 _Cal._, 76), iii, 137 n. 1.
Morrison _v._ Morrison (20 _Cal._, 431), iii, 137 n. 2.
Norfolk's case (Howell, _State Trials_, xii, 883-948), ii, 104.
North's case (_Conn. Col. Rec._, i, 362), ii, 356.
North _v._ North (1 Barbour, _Ch. Reports_, 241, 245; 43 _Am. D._,
788), ii, 382 n. 2.
Northampton's case, ii, 80, 103.
Northfield _v._ Plymouth (20 _Vt._, 582), iii, 179.
Newbury _v._ Brunswick (2 _Vt._, 151; 19 _Am. D._, 703), iii, 179.
Newton's case (_Records of Court of Assistants_, i, 342), ii, 215
n. 1.
Niles _v._ Niles (_Laws and Resolutions of Neb._, i, 373), iii, 97
n. 6.
Oliver _v._ Sale (Quincy, _Reports_, 29), ii, 217 n. 2, 348.
Owen's case, (_Records of Court of Assistants_, i, 361), ii, 215.
Parcel's case (_N. Y. Col. MSS._, viii, 1053), ii, 280.
Parker _v._ Parker (_Acts of Va._, 1826-27, 126), iii, 36 n. 2.
Parminter's case (_MSS. Records of Co. Court of Midd._, iii, 316),
ii, 163 n. 4.
Parton _v._ Hervey (1 Gray, 119), ii, 472 n. 7; iii, 179 n. 1, 191
n. 2.
Pearce _v._ Mattoon (_Coll. N. H. Hist. Soc._, viii, 68), ii, 348,
349.
Pearson _v._ Pearson (51 _Cal._, 120), iii, 151, note.
Pearson _v._ Howey (6 Halst., 12, 18, 20), iii, 177.
Peck _v._ Peck (12 _R. I._, 484-89; 34 _Am. D._ 702), iii, 181, 183
n. 2.
Peggy's case (_MSS. Records of Co. Court of Suffolk_, 261), ii, 166
n. 3.
Pennington _v._ Pennington (10 _Philadelphia_, 22), iii, 110, note.
People _v._ Anderson (26 _Cal._, 130), ii, 467 n. 1.
---- _v._ Beevers (99 _Cal._, 286), ii, 467 n. 1.
---- _v._ Lehman (104 _Cal._, 631), ii, 467 n. 1.
Perkins _v._ Emerson (2 Dane, _Abridgment_, 412), ii, 217 n. 2.
Perry's case, ii, 220.
Perry _v._ Perry (2 Barb., _Ch. Reports_, 311), iii, 105 n. 1.
Pickering's case (_MSS. Records of Co. Court of Suffolk_, 279),
ii, 160.
Pickering and Walsh, i, 422, 423.
Pierce _v._ Pierce (15 _Am. D._, 210, note), iii, 137 n. 1.
Pilgrim _v._ Pilgrim (57 _Ia._, 370), iii, 137 n. 2.
Philip of Hesse's case, i, 390.
Philip's case, iii, 98.
Phillips and Rice (_MSS. Records of Sup. Court of Jud._, 1773-74,
foll. 36, 38), ii, 177 n. 1.
Phillimore _v._ Machon (1 _P. D._, 481), i, 465 n. 3.
Poore _v._ Poore (29 _Am. D._, 664), iii, 137 n. 1.
Port _v._ Port (70 _Ill._, 484), iii, 177, 183 n. 2.
Porter's case (Croke, _Reports, Charles I._, 461-63), ii, 85.
Porter _v._ Porter (_R. I. Col. Rec._, ii, 119-21), ii, 363.
Powelson _v._ Powelson (22 _Cal._, 358), iii, 137 n. 1.
Pray's case (_R. I. Col. Rec._, ii, 188, 189), ii, 363, 364 and
n. 1.
Pride _v._ Bath and Montague (1 Salkeld, 120), ii, 95 n. 3.
Purcell _v._ Purcell (4 Hening and Munford, 506), ii, 368, 369.
Putnam _v._ Putnam (8 Pickering, 433-35), iii, 19, 20.
Railway Co. _v._ Cody (2 _T. C. A._, 520-24), iii, 177.
Read _alias_ Rogers's case (_Records of Court of Assistants_, i,
10), ii, 174 n. 1.
Reddall _v._ Leddiard (3 Phillim., 256), i, 464.
Reed _v._ Reed (4 _Nev._, 395), iii, 143 n. 2.
Regina _v._ Carroll, i, 317 n. 1.
---- _v._ Chapman (1 Den., 432), i, 466 n. 3.
---- _v._ Millis (10 Clark and Finnelly, 534-907), i, 316-18; iii,
178.
Rex _v._ Brampton (10 East, _King's Bench Reports_, 282), ii, 367.
---- _v._ Northfield (2 Douglas, 658), i, 462, 463.
Richard de Anesty's case, i, 351.
Robertson _v._ Cole (12 _Texas_, 356), ii, 437 n. 2.
Robertson _v._ S. (42 _Ala._, 509), iii, 176.
Roche _v._ Washington (19 _Ind._, 53), iii, 177.
Rodebaugh _v._ Sanks (2 Watts, 9-12), ii, 457; iii, 177.
Rogers _v._ Rogers (_Conn. Col. Rec._, ii, 292, note, 293), ii, 357.
Roos's case, ii, 103 and n. 3.
Ross _v._ Ross (10 _N. W. Rep._, 193), iii, 142 n. 4.
Rothes's case, ii, 59 n. 2.
Roy's case (_MSS. Records of Co. Court of Midd._, i, 241), ii, 189
n. 1.
Rycraft _v._ Rycraft (42 _Cal._, 144), iii, 138 n. 1.
Rundle _v._ Pegram (49 _Miss._, 751), iii, 180.
Sackett _v._ Sackett (8 Pickering, 309), ii, 366.
Sampson _v._ Sampson (_Md. Laws_, 1806-7, chap. xxxix), iii, 32.
Schaets _v._ Schaets, ii, 381, 382.
Schafher _v._ S. (20 _Ohio_, 1), ii, 478 n. 3.
Schlichter _v._ Schlichter (10 _Philadelphia_, 11), iii, 110, note.
Scott's case (_MSS. Records of Co. Court of Suffolk_, 106), ii, 166.
Seawall's case (_Mass. Col. Rec._, i, 233), ii, 161 n. 3.
Seger _v._ Slingerland (2 Caine, _Reports_, 219, 220), ii, 272.
Sell's case (Thompson's _Laws of Pa._, vii, 326-28), iii, 99, 100.
Severance and Classon (_MSS. Records of Sup. Court of Jud._,
1755-56, fol. 341), ii, 178 n. 5.
Sewall _v._ Sewall (122 Mass., 156), ii, 470 n. 4.
---- _v._ Sewall (_Md. Laws_, 1790, chap, xxv), iii, 31, 32.
Sharon _v._ Sharon (67 _Cal._, 185; 75 _Cal._, 1-78; 79 _Cal._,
633-703; 84 _Cal._, 424), ii, 467; iii, 158 n. 1.
Shaw's case (_Acts of Ala._, 1882-83, 587), iii, 40.
Shaw's case (_MSS. Records of Gen. Sessions of Suffolk_, iii, 83),
ii, 192 n. 1.
Shaw _v._ Shaw (17 _Conn._, 189), iii, 13 n. 5.
Sille _v._ Sille, ii, 380.
Silvester _v._ Palmer (_Plym. Col. Rec._, vii, 101), ii, 201.
Smith's case (_MSS. Records of Co. Court of Midd._, iii, 63), ii,
160.
Smith _v._ Smith (17 _N. Y._, 76), ii, 470 n. 4.
---- _v._ Smith (1 _Texas_, 621; 46 _Am. D._, 121, note, 130-34),
ii, 475 n. 3.
---- _v._ Woodworth (44 Barbour, _Ch. Reports_, 198), iii, 146.
Spencer _v._ Pollock (88 _Wis._, 215-22), iii, 177.
Spriggs _v._ Spriggs (_Laws of Ill._, 1817-18, 356), iii, 96.
Stacey's petition (_MSS. Court Files of Suffolk_, No. 988), ii, 174,
note.
Starr _v._ Peck (1 Hill, _N. Y._, 270), iii, 175 n. 2, 183 n. 2.
State _v._ Armington (25 _Minn._, 29-39), iii, 207.
---- _v._ Bittick (103 _Mo._, 183), iii, 176.
---- _v._ Brecht (41 _Minn._, 50, 54; 42 _N. W. Rep._, 602), ii, 468
n. 2.
---- _v._ Boyle (13 _R. I._, 537), iii, 181.
---- _v._ Hodskins (19 _Me._, 155-60; 36 _Am. D._, 743), iii, 179.
---- _v._ Murphy (6 _Ala._, 765-72; 41 _Am. D._, 79), iii, 176.
---- _v._ Patterson (2 Iredell, _N. C._, 346-60), iii, 180.
---- _v._ Robbins (6 Iredell, _N. C._, 23-27), iii, 180.
---- _v._ Samuel (2 Dev. and Bat., 177-85), ii, 263, note; iii, 180.
---- _v._ Ta-cha-na-tah (64 _N. C._, 614), ii, 263, note; iii, 180.
---- _v._ Walker (36 _Kan._, 297; 59 _Am. R._, 556), iii, 177.
---- _v._ Willis (9 _Ark._, 196-98), iii, 176.
---- _v._ Wilson (121 _N. C._, 657), iii, 180.
---- _v._ Worthington (23 _Minn._, 528), iii, 177.
---- _v._ Zichefield (23 _Nev._, 304-18), iii, 177.
Stedwill _v._ Gunst (_Records of New Amsterdam_, vi, 203), ii, 281.
Stein _v._ Stein (5 _Col._, 55), iii, 137 n. 2.
Stephens _v._ Totty (Croke, _Reports, Elizabeth_, 908), ii, 84 n. 1.
Stevens _v._ Stevens (_Plym. Col. Rec._, vi, 44, 45), ii, 351.
Stewart _v._ Munchandler (2 Bush., _Ky._, 278), iii, 180.
Stiel's case, i, 373 n. 1.
Stille _v._ Stille (_Acts of Ter. of Orleans_, 1805, 454-56), iii,
41.
Streitwolf _v._ Streitwolf (_Opinions of U. S. Sup. Court_, No. 13,
553), iii, 207.
Succession of Hernandez (46 _La. Ann._, 962; 15 _So. Rep._, 461),
iii, 146 n. 2.
Sullivan _v._ Learned (49 _Ind._, 252), iii, 147 n. 2.
Sutton's case (_Law Reports_, x, 733), ii, 286 n. 1, 303 n. 1.
Sutton _v._ Russell (_Plym. Col. Rec._, vii, 101, 109), ii, 201.
---- _v._ Symonds (_Plym. Col. Rec._, v, 116), ii, 202, 203.
Swendsen's case (14 Howell, _State Trials_, 559 ff.), i, 447.
Talbie's case (_Hist. Coll. Essex Inst._, vii, 129, 187), ii, 161
n. 3.
Talman _v._ Talman, ii, 361 n. 3.
Taylor's case, ii, 163.
Taylor _v._ Taylor (10 _C. A._, 303, 304), iii, 177.
Tel. Co. _v._ Procter (6 T. C. A., 300, 303), iii, 176.
Teter _v._ Teter (101 _Ind._, 129; 51 _Am. R._, 742), iii, 177.
Tewsh's case, ii, 106 n. 2.
Tubbs _v._ Tubbs (_Plym. Col. Rec._, iv, 66, 187, 192), ii, 350.
Tupper's case, ii, 210.
Turton's case, ii, 106 n. 1.
Thomas of Bayeux and Elena de Morville, i, 357 n. 3.
Thomas _v._ Thomas (124 _Pa._, 646; 23 _W. N. C._, 410), iii, 111
n. 2.
Thorp _v._ Thorp (90 _N. Y._, 602), iii, 145 n. 2.
Toon _v._ Huberty (104 _Cal._, 260), ii, 467 n. 1.
Trothplights and Clandestine Marriages, cases of, i, 399-403.
Uhlmann _v._ Uhlmann (17 Abb., _N. C._, 236), iii, 105 n. 1.
Ulrich _v._ Ulrich (8 _Kan._, 402), iii, 129 n. 2.
Underwood's case (_Mass. Col. Rec._, iii, 349, 350), ii, 159.
Usher _v._ Troop or Throop (_MSS. Records of Sup. Court of Jud._,
1725-30, fol. 236), ii, 151 n. 3.
U. S. _v._ Simpson (4 _Utah_, 221; 7 _Pac._, 257), iii, 181.
Utterton _v._ Tewsh (Fergusson, _Reports of Consist. Court of
Scotland_, 23), ii, 373 n. 2.
Vaigneur _v._ Kirk (2 _S. C. Equity Reports_, 640-46), ii, 263,
note, 416 n. 2; iii, 77, 176 n. 1.
Vanakin and Martin (_Pa. Col. Rec._, x, 40, 53, 54, 55, 104, 105),
ii, 387.
Vanolinda _v._ Vanolinda, ii, 380.
Van Voorhis _v._ Brintnall (86 _N. Y._, 18), iii, 145.
Velthuyzen _v._ Velthuyzen (_Records of New Amsterdam_, iii, 73),
ii, 377.
Verleth _v._ Beeck (_Records of New Amsterdam_, ii, 36), ii, 274
n. 2.
Wade _v._ Wade (_Conn. Col. Rec._, i, 301), ii, 356.
Wake's case (_Mass. Col. Rec._, i, 311), ii, 159.
Wallingford _v._ Wallingford (6 Harris and Johnson, 485), ii, 373
n. 3.
Waltermire _v._ Waltermire (110 _N. Y._, 183), iii, 105 n. 1.
Wanton's case, ii, 210.
Warren and Gould (_MSS. Records of Sup. Court of Jud._, 1730-33,
fol. 49), ii, 175, 176.
Washburn _v._ Washburn (9 _Cal._, 475), iii, 138 n. 1.
Watkins _v._ Watkins (135 _Mass._, 84), ii, 470 n. 4.
Weld's case (_MSS. Records of Co. Court of Midd._, i, 243), ii,
189 n. 1.
Wesner _v._ O'Brien (1 _Ct. App._, 416), iii, 129 n. 2.
West Cambridge _v._ Lexington (1 Pickering, 507-12), iii, 19 and
n. 1.
Wharton's case (_Doc. Rel. to Col. of N. Y._, xii, 596), ii, 289,
290.
Wheaton's case (_MSS. Records of Co. Court of Suffolk_, 22), ii,
190, 191.
Whispell _v._ Whispell (4 Barb., 217), iii, 105 n. 1.
Whitcomb _v._ Whitcomb (46 _Ia._, 437), iii, 127.
White _v._ White (82 _Cal._, 427), ii, 467 n. 1.
Willey _v._ Willey (22 _Wash._, 115-21), iii, 151 n. 2.
Williams's case, ii, 161 n. 3.
Williams _v._ Herrick (21 _R. I._, 401-3), iii, 181.
Williams _v._ Williams (_Plym. Col. Rec._, v, 127), ii, 350.
---- _v._ Williams (46 _Wis._, 464-80), iii, 177.
Williamson _v._ Williamson (1 Johnson, _Ch. Reports_, 488, 491,
492), ii, 382.
Wilson's case (_MSS. Records of Co. Court of Midd._, i, 131), ii,
165, 166.
Winchendon _v._ Hatfield (4 _Mass._, 123), ii, 217 n. 3.
Wood's petition (_N. Y. Col. MSS._, xxv, 84), ii, 384, 385.
Wood _v._ Wood (2 Paige, _Ch. Reports_, 108, 111), ii, 382.
Wuest _v._ Wuest (17 _Nev._, 216), iii, 143 n. 2.
Wright _v._ Wright's Lessee (2 _Md._, 429; 56 _Am. D._, 723-33), ii,
374 n. 4.
Wyckoff _v._ Boggs (2 Halst., 138-40), iii, 177.
Y. _v._ Y. (1 Swabey and Tristram, 598-600), ii, 113 n. 2.
SUBJECT INDEX
Abercromby, John: on marriage with capture, i, 177 n. 1.
Abipones, i, 105;
abhor close intermarriage, 126 n. 1;
monogamy the rule, i, 143 n. 1;
cohabitation with wives in turn, 145;
liberty of choice, 212, 213;
divorce, 232.
Abduction: pretended, i, 182-84;
whether leading to free marriage among ancient Germans, 276 n. 2.
Adams, Charles Francis: on bundling, ii. 182 and n. 3, 184 and n. 4;
confessions of pre-nuptial incontinence, 195-98;
confessions in Groton church, 198 n. 2.
Adams, Henry: on status of early German woman, i, 257, 260, note;
wedding ring, 279, 280.
Administration of marriage law: effective in early New England, ii,
126, 127, 143-51.
_Admonition to the Parliament_: quoted, i, 410;
_Answer_ to, 411.
Adoption: as means of social expansion, i, 13 and n. 3, 26 n. 2.
Adultery: according to scriptural teaching, ii, 19, 20;
Jewish law, 20 n. 3, 99 n. 2;
views of early Fathers, 24, 27;
law of Theodosius II., 32;
male, not recognized by early Roman law, 32 n. 3;
nor by early Teutonic, 35 and n. 5;
death penalty for, under Constantine, 32 n. 4;
laws of Valentinian and Justinian, 32 n. 4;
death penalty for, under early Teutonic law, 36, 37, 38;
ground for separation under canon law, ii, 53;
for divorce at Reformation, 62 and n. 2;
death penalty favored by some reformers, 66, 67;
punished by the _Reformatio legum_, 79;
Samuel Johnson on, 106;
under present English law, 110, 114, 115.
---- in the American colonies: death penalty for, ii, 169;
this penalty enforced in Massachusetts, 169-71;
punished by scarlet letter in Plymouth, 171, 172;
also in New Hampshire, Connecticut, and Massachusetts, 172-76;
espoused woman may commit, 180, 181;
punishment for, in Virginia, ii, 236;
New Netherland, 280;
Pennsylvania, 319, 320 n. 6, 385, 386;
early Massachusetts, male, not ground of divorce, 331, 345 and
n. 1: same in Plymouth, 351;
death penalty in New Haven, 352;
how punished in Massachusetts, ii, 398 n 3.
Æthelberht, code of: allows one-sided divorce, ii, 39.
Affinity: forbidden degrees of, i, 129, 352 n. 1, 354 n. 5, 390,
391.
Afghanistan: wife-capture in, i. 160;
wife-purchase, 197;
sentiment of love, 248.
African aborigines: matrimonial institutions of, i, 33, 34, 107 n. 1;
Starcke on, 46;
marriage customs in Guinea, 83 n. 4;
polyandry of Kafirs, 135 n. 2;
rich indulge in polygyny, 146 n. 1;
wife-capture rare, 159;
symbol of rape, 172;
coexistence of rape and purchase, 180;
wife-purchase, 193, 194;
free marriage, 214;
divorce at pleasure, 226 and n. 3, 239;
divorce in council, 241.
Agde, Council of: allows remarriage after divorce, ii, 39;
did not originate spiritual divorce jurisdiction, 49 and nn. 2, 3.
Age of consent to carnal knowledge: in the various states and
territories, iii, 195-203.
Age of consent to marriage: under canon law, i, 357-59;
Swinburne on, 403 n. 1;
in New York province, ii, 287;
in the New England states, 395, 396;
southern and southwestern states, 428, 429;
middle and western states, 471, 472;
reform needed, iii, 190, 191.
Age of parental consent to marriage: in the New England States,
ii, 396, 397;
southern and southwestern states, 429-33;
middle and western states, 472, 473;
reform needed, iii, 191.
Agnation: the Roman, i, 11, 12;
extent of, according to Maine, 12;
whether among Hebrews, 15-17;
only element of, among early Aryans, 27, 28;
relation of, to _patria potestas_, 30-32.
Ainos: wooing-gifts among, i, 218.
Alabama: marriage celebration in, ii. 417 n. 4;
age of consent and of parental consent, 428, 429;
license bond required when under age, 430;
forbidden decrees, 433, 435;
void or voidable marriages, 437, 438;
miscegenation forbidden, 438;
license system, 447;
license bond, 448;
return, 449;
legislative divorce, iii, 39, 40;
judicial divorce, 62-64;
remarriage, 83: residence, 85;
process, 89;
common-law marriage, 176;
age of consent to carnal knowledge, 200.
Alamanni: wife-purchase among, i, 264 and n. 3.
Alaska: marriage celebration in, ii, 463;
witnesses, 465;
definition, 470;
age or consent to marriage, 471;
forbidden degrees, 474;
marriage certificate, 492;
divorce, iii, 143, 144;
remarriage, 149;
residence, 157;
courts silent as to common-law marriage, 182;
age of consent to carnal knowledge, 202.
Albania: bride-price in, i, 197.
Alcibiades: prevents Hipparete from getting divorce, ii, 12 n. 3.
Aleuts: man's sole right of divorce among, i, 231.
Alexander III.: decretal epistle of, to the bishop of Norwich, i,
315, 351.
Alfonso the Wise: defines three kinds of secret marriage, i, 347,
348.
Alfurese of Minahassa: divorce among, i, 226.
Algonquins: abhor close intermarriage, i, 126.
Alimony: separate, granted in southern colonies, ii, 368-71;
temporary and permanent, in the New England states, iii, 28-30;
southern and southwestern states, 90-95.
_Altfamilie_: of Lippert and Hellwald, i, 60.
Amaxosa: divorce among, i, 227.
Amazonism: i, 41, 42, 44.
Ambrose: on divorce, ii, 24;
veil and benediction, i, 294.
American aborigines: position of woman, i, 45 and n. 6;
temporary marriages and prostitution, 49 and n. 1: Punaluan family
among, 68;
Ganowánian system of consanguinity, 68, 69 n. 1;
totemism, 74;
house-communities, 129;
monogamy the rule, i, 142, 143 and n. 1;
polygyny, when, 145;
authorities on matrimonial institutions of, 154-56;
wife-capture, 158, 159;
symbolical capture, 164-68;
marriage by service, 186-88;
by a price paid, 190-93;
extent of free marriage, 212, 213;
wooing-gifts, 219;
divorce, 227, 228 and n. 2, 231, 232, 238, 239.
American ethnologists: important work of, i, 154.
Amira, Karl v.: his _Erbenfolge_ cited, i, 263 n. 4.
Amram, D. W.: on Jewish woman's power of divorce, i, 240 n. 4;
schools of Hillel and Shammai, ii, 13 n. 2;
early Hebrew divorce, 13 n. 4, 14;
cited, ii, 152 n. 2.
Anaitis, 51 n. 1.
Anbury, Lieutenant: on bundling, ii, 184.
Ancestor-worship, i, 13 and n. 4, 26 n. 1.
Anchieta, J. de: quoted, i, 106 and n. 2.
Andaman Islanders, i, 107.
Andros, Sir Edmund: wishes to abolish civil marriage, ii, 136;
requires license bonds, 136 and n. 2.
Anesty, Richard de, i, 351.
Angers, Council of: enforces doctrine of indissolubility, ii, 39.
Anglican Clergy: have monopoly of legal marriage celebration in
colonial Virginia, ii, 228, 230, 231, 232;
their power in Maryland, 241-45;
North Carolina, 251-59;
Georgia, 262.
Anglo-Saxons: marriage among, authorities on, i, 257, 258;
wife-purchase, 261 n. 2, 262, 263;
_arrha_, or second stage in evolution of the purchase-contract,
267,268;
formal contract or third stage, 269-71;
_gifta_, 272-76;
rise of self-betrothal, 276-78.
(_See_ Marriage.)
Animals, the lower: the family among, i, 91-102.
Annam: marriage with sisters in, i, 125.
Annulment of marriage: facility of, under canon law, ii, 56-59.
Anselm: tries to check clandestine marriages, i, 313.
Aphrodite, i, 51.
Aphrodistic hetairism, i, 40-43.
Apollonistic father-right, i, 40, 43.
Appiacás, i, 143 n. 1.
Applegarth, A. C.: quoted, ii, 316, 317, 324 n. 1;
on Quaker wedding feasts, 325, 326.
Appointed daughter, i, 84 n. 2, 217 n. 2.
Arabs: whether _patria potestas_ among, i, 19;
matrimonial institutions of, 34;
wife-lending, 49;
wife-capture, 161, 165;
wife-purchase, 195, 196;
divorce, 226, 227 and n. 1;
effect of wife-purchase on divorce, 246 and n. 1.
(_See_ Islam, Mohammedans.)
Araki, T.: denies wife-capture and wife-purchase among Japanese, i,
172 n. 3.
Arbitration of divorce suits in New Netherland, ii, 372-82.
Aristotle: on family as social unit, i, 10 nn. 2, 3;
bride-price in ancient Greece, 199.
Arizona: marriage celebration in, ii, 417 n. 4;
what constitutes a legal marriage, 424, 425;
age of consent and of parental consent, 428, 429;
forbidden degrees, 433;
void or voidable marriages, 435 n. 3, 437, 438;
miscegenation forbidden, 440;
license system, 447;
return, 449;
judicial divorce, iii, 72-74;
remarriage, 82;
residence, 87;
courts silent as to common-law marriage, 181;
age of consent to carnal knowledge, 198, 199.
Arkansas: marriage celebration in, ii, 417 n. 4;
requisites for a legal marriage, 424;
marriages of freedmen, 426;
marriage a civil contract, 427;
age of consent and of parental consent, 428, 429;
forbidden degrees, 433, 435 n. 3, 437, 438;
miscegenation forbidden, 439;
license system, 447;
marriage certificate, 451;
license bond, 448;
return, 449 and n. 1;
state registration, 452;
judicial divorce, iii, 71, 72;
remarriage, 82;
residence, 87;
process, 89;
alimony, 91;
common-law marriage, 176;
age of consent to carnal knowledge, 199.
Arles: marriage ritual of, i, 311 n. 4.
---- council of: on second marriage, ii, 26 and nn. 2, 3.
Arnold, S. G.: on divorce in Rhode Island colony, ii, 363, 364, 365.
_Arrha_: among Salian Franks, i, 264 and n. 2;
takes place of _weotuma_, 266;
superseded, 268;
as _Weinkauf_, 270 n. 1;
in form of ring, 278 and n. 3, 280, 281, 295, 307.
Arsha rite, i, 198, 220.
Arunta: sexual customs of, i, 50 n. 2, 75, 76 and n. 3, 170, note.
Aryans, the early: two stages in rise of juridical conceptions of,
i, 24-26;
household among, 26, 27;
housewife, 27 n. 2;
whether paternal or maternal system, 18-27.
(_See_ India, Hindus.)
Aryans and Hindus: works on matrimonial institutions of, i, 3, 4;
family among, 26-28 and n. 1;
wife-capture, 159, 160, 170-75.
(_See_ India.)
Asceticism: influences early Christian conception of marriage, i,
324.
Ashantees: remarriage of the woman after divorce not allowed among,
i, 245.
Ashton, J.: on the Fleet, i, 437 n. 3;
Fleet marriages, 440-42, notes;
cheapness of, 444 n. 1;
elopements with heiresses, 447 n. 2;
Keith's marriages, 459 n. 3.
Assistants, court of: has divorce jurisdiction in Massachusetts
colony, ii, 331, 336.
Âsura rite, i, 198.
Astell, Mary: her _Defense of the Female Sex_, iii, 237.
Athenians: divorce among, i, 239, 240; ii, 3, 12;
unfavorable position of woman, 12 n. 3.
Atkinson, J. J.: on jealousy as a bar to sexual unions, i, 132,
note.
Augustine, St.: on confusion of scriptural texts on divorce, ii, 22
n. 2;
divorce, 23, 24;
indissolubility of marriage, 26, 27;
practice of remarriage after divorce, 28 and n. 5;
triumph of his teachings in Carolingian empire, 41;
death for adultery, 44.
Augustus: changes law of divorce, ii, 16;
compels repudiation of Livia, 17 n. 4;
his conditions regarding divorce, 29 and n. 2.
Aulus Gellius: cited, ii, 15 n. 4, 16, note, 17.
Australian aborigines: works on matrimonial institutions of, i,
34, 35;
authority of father, 46;
alleged evidences of former promiscuity, 53 and n. 3;
these rejected by Crawley, 54;
class systems, 66, 70, 71-76;
extent of female kinship among, 116;
elopement and symbolical capture, 169 and n. 3;
coexistence of rape and purchase, 181 and n. 3, 182;
wives by exchange, 185, 186.
Avery, John: his offenses, ii, 290, 291.
Avoidance: custom of, i, 187 and n. 2.
Aztecs: divorce among, i, 237, 238 n. 1;
remarriage of the divorced couple forbidden, 247;
divorce infrequent, 248.
Babylonians: alleged sacred prostitution among, 51 and n. 1;
wife-purchase, 199, 200;
high ideal of family life, 221 n. 3.
Bachofen, J. J.: his works, i, 33;
character of his writings, 39 and n. 2;
his _Mutterrecht_ analyzed, 40-43;
his disciples and adversaries, 43;
on expiation for marriage, 50.
Bacon, L.: cited, ii, 130 n. 2, 131 n. 4.
Bancroft, George: on slavery in Massachusetts, ii, 216;
slave baptisms, 221.
Bancroft, H. H.: on symbolical rape among Mosquito, i, 166;
the Oleepa, 167, 168;
California Indians, 172 n. 2;
on the Kenai, 187, 188;
Columbians, 238.
Bangor: marriage ritual of, i, 311 n. 4.
Banjuns: status of divorced woman among, i, 245.
Banns: required by Archbishop Walter and by Innocent III., i, 314;
institution of, 359-61;
under law of 1653, 425, 426;
disliked, 441 and n. 2, 445 and n. 3, 457, 458;
under Hardwicke Act, 458, 462;
present English law, 466-69.
---- in early New England, ii, 131 and n. 4;
in eighteenth century, 142;
in Plymouth, 144;
Massachusetts colony, 145;
New Hampshire province, 147;
Connecticut colony, 147 and n. 5;
dual system in Rhode Island colony, 148-51;
in colonies of Virginia, 229, 230, 233;
and Maryland, 240, 243;
in North Carolina colony, ii, 251, 255;
New Netherland, 268-70, 272, 273, 277;
New York province, 285-87, 294, 297;
New Jersey, 309.
---- survival of the optional system of, in the New England states,
ii, 401-3;
in the southern and southwestern states, 441-45;
Delaware and Ohio, 482-84;
defects, iii, 186.
Banyai: bride-price among, i, 194.
Baptism of slaves: the problem of, ii, 220-23.
Barebone's Parliament: enacts the civil-marriage ordinance of 1653,
i, 418, 428.
Barrington, Lord: on the Hardwicke Act, i, 452 n. 1.
Basil: favors remarriage after divorce, ii, 28 and n. 2.
Bastardy: cases of, in early Massachusetts, ii, 191 n. 3.
Bataks: divorce among, i, 229.
Bath, Lord: drafts marriage bill, i, 448.
Bavaria: divorce rate of, iii, 212.
Bavarians: wife-purchase among, i, 264 and n. 3.
Beamish _v._ Beamish, i, 318-20.
Beauty: fades early among barbarians, i, 146 and n. 5;
standards of, 207 n. 5.
Bebel, A.: views of, as to marriage and the family, iii, 234, 235.
Beckwith, Paul: on divorce among the Dakotas, i, 232 and n. 3.
"Bedding" the bride and groom in New England, ii, 140.
Bedouins: symbolical rape among, i, 165, 172;
effects of divorce, 246.
Beeck, Johannis van, and Maria Verleth: case of, ii, 274-77.
Beeckman, W.: his letter to Stuyvesant, ii, 277.
"Beena" marriage, i, 16 and n. 3;
as modified polyandry, 80 n. 3;
Tylor on, 114, 115 n. 1.
Belcher, Sir E.: on Andaman Islanders, ii, 107.
Belgium: divorce rate of, iii, 212.
Belknap, J.: on slavery in New England, ii, 217 n. 1, 224.
Bell _v._ Bell, iii, 207.
Bellingham, Governor Richard: self-_gifta_ of, ii, 210, 211; iii,
173.
Benedict Levita: enforces doctrine of indissolubility, ii, 44.
Benediction: the primitive Christian, i, 291, 293-95, notes, 296
n. 1, 297 n. 1;
in tenth century, 299, 308;
required by Theodore and Anselm, 313;
by Council of Carthage, 313 n. 2.
Beni Amer: divorced woman among, must wait three months before
remarriage, i, 245 n. 5.
Bennecke, H.: on adultery among early Teutons, ii, 36 n. 1;
the penitentials, 44 n. 3.
Bennett, E. H.: cited, iii, 178 n. 3;
favors constitutional amendment, 222 n. 3.
Berbers of Dongola: remarriage of divorced couple among, i, 247
n. 2.
Bernhöft, F.: works of, i, 4;
cited, 8 n. 1;
on danger of inference from written laws, 9 n. 2;
rejects mother-right for Aryans, 20;
criticises Leist and Dargun, 23 and n. 4;
on Roman agnation, 31 n. 5;
denies invariable sequence of mother-right and father-right, 55;
on wife-capture and marriage, 178 n. 1; 182 n. 3; 184 n. 3;
_coemptio_, 199 n. 5;
wife-capture among Germans, 258 n. 1.
Bertillon, J.: on the marriage rate, iii, 214;
influence of legislation on the divorce rate, 216;
of restrictions on remarriage, 219 n. 1.
Betrothal: the old English and early German, i, 258-72;
forms of, among the Burgundians, 265 n. 2;
evolution of, 266-69;
English ritual of tenth century, 259 n. 1, 269-71;
self-betrothal, 276-81;
repetition of, in the nuptial ceremony, 283-85;
Swabian ritual of the twelfth century, 284, 285;
Roman, 291, 292 and n. 3;
of the canon law based on the German, 293 and n. 1;
no ritual of, under Roman law, 294.
(_See_ _Beweddung_.)
---- law and theory regarding, among the reformers, i, 371-86.
---- or pre-contract, in New England, ii, 179-81;
survival of the _beweddung_, 180;
a kind of half-marriage, 180, 181;
influences bundling, 185, 186;
probable cause of pre-nuptial fornication, 186-99;
influenced by Jewish law, 199, 200;
similar effects of published contract in New Netherland, 271.
(_See_ _Beweddung_.)
_Bettbeschreitung_, i, 272 n. 4.
Beust, J.: on divorce, ii, 62;
favors death for adultery, 66.
_Beweddung_: the betrothal or sale-contract, i, 220;
among the old English and other Teutons, 258-72;
phases of evolution of, 266-69;
old English ritual, 269-71, 302;
relative importance of, as compared with the _gifta_, 273-76;
self-_beweddung_, 276-86.
(_See_ Betrothal.)
---- regains original importance after German Reformation, i, 373,
374 and n. 5;
also in New England, ii, 180.
Beyer, Caspar: case of, i, 374 n. 5.
Beza, T.: on divorce, ii, 62;
favors death for adultery, 66.
Bibliographical footnotes, the chief: family as basis of state, i,
10 n. 1;
_patria potestas_, 11 n. 2;
"beena" marriage, 16 n. 3;
ancestor-worship, 13 n. 4, 26 n. 1;
Aryan or Indic family, 28 n. 1;
definitions, 44 n. 1;
Bachofen, 39 n. 2;
original communism, 46 n. 5, 47 nn. 1, 2;
horde, 47 n. 3;
prostitution and licentious customs, 48, 49, notes;
proof-marriages, 49 n. 2;
wife-lending, 50 n. 1;
_jus primae noctis_, 51 n. 2;
Australian class systems, 76 n. 3;
totemism, 79 n. 2;
polyandry, 80 n. 2;
_niyoga_, 84 n. 2;
McLennan's views, 86 n. 2;
female infanticide, 86 n. 1;
female kinship, 110 n. 2;
_couvade_, 112 n. 4;
polygyny, 141 n. 2;
wife-capture, 156 n. 1;
form of capture, 164 n. 2;
wife-purchase, 185 n. 2;
wife-purchase among American aborigines, 193 n. 2;
sexual selection, 205 n. 4;
child-betrothal, 209 n. 1;
choice of woman in courtship, 215 n. 4;
marriage contract among Babylonians and Assyrians, 221 n. 3;
Arabian divorce, 227 n. 1;
_Zeitehen_, 235 n. 1;
wife-capture among Germans, 258 nn. 1, 2;
_weotuma_, and equivalent terms, 259 n. 3;
tutelage of women among Germans, 259 n. 4;
nature of the betrothal, 260 n. 1;
old English marriage, 263 n. 4;
on marriage of Chlodwig and Chlotilde, 264 n. 2;
_arrha_, 266 n. 1;
morning-gift and dower, 269 n. 2;
nuptials of widows, 273 n. 1;
Sohm's theory, 275 n. 2;
ring and kiss, 278 n. 3, 279 n. 1;
acceptance of Roman marriage forms by early church, 291 n. 2;
_consensus_ in Roman marriage, 292 nn. 2, 3;
_sponsalia_, 293 n. 1;
marriage at church door, 300 n. 1;
early Fathers on marriage, 325 n. 2;
rise of sacerdotal celibacy, 328 n. 1;
immorality of mediæval clergy, 332 n. 1, 388 n. 4;
Lombard's theory of _consensus_, 336 n. 6;
clandestine marriage, 346 n. 3;
forbidden degrees, 352 n. 1;
impediments after the Reformation, 391 nn. 1, 2, 3;
nature of marriage according to English Reformers, 394 n. 1;
parish registration during the Commonwealth, 426 n. 3;
Hardwicke Act, 449 nn. 1, 2;
Scotch marriage law, 473 n. 2;
Jewish divorce, ii, 12 n. 4, 13 n. 4;
Roman divorce, 14 n. 3, 15 n. 4;
scriptural law of divorce, 19 n. 2;
views of early Fathers on divorce, 23 n. 1;
penitentials, 44 n. 3;
Protestant opinions on divorce, 62 n. 2;
Wittenberg consistory, 70 n. 4;
_Reformatio legum_, 77 n. 4;
Foljambe's case, 82 n. 2;
Lyndhurst's Act, 95 n. 5;
deceased wife's sister question, 98 n. 2;
parliamentary divorce, 102 n. 2, 103 n. 3;
present English divorce law, 109 nn. 1, 2;
clerks of the writs, 146 n. 1;
death penalty for adultery, 169 n. 3, 170 n. 1;
marriage and divorce laws of French Revolution, iii, 168 n. 2,
169 n. 1;
age of consent law reform, 196 n. 1;
divorce rate in Europe, 213 n. 1;
divorces in France, 216 n. 4;
disintegration of the family, 225 n. 1;
college women and marriage, 244 n. 2;
effect of woman's new activities, 240 n. 4, 247 n. 2;
woman's rights literature, 237 n. 4, 238 n. 2;
early writings on woman and marriage, 236 n. 2.
Bibliographical headnotes: patriarchal theory, i, 3-7;
horde and mother-right. 33-38;
pairing family, 89, 90;
rise of marriage contract, 152-55;
early history of divorce, 224;
old English wife-purchase, 253-58;
lay marriage contract accepted by the church, 287-91;
the church develops and administers matrimonial law, 321-24;
Protestant conception of marriage, 364-70;
rise of civil marriage, 404-8;
divorce and separation under English and ecclesiastical law, ii,
3-11;
civil marriage in the New England colonies, 121-25;
marriage in the southern colonies, 227, 228;
marriage in the middle colonies, 264-66;
divorce in the colonies, 328, 329;
matrimonial legislation, 388;
divorce legislation, iii, 3;
problems of marriage and the family, 161-67.
Bidembach, F.: on divorce, ii, 68.
Biener, F. A.: his _Beiträge_ cited, i, 290.
Bierling, E. R.: on _consensus_, i, 292 n. 3;
ecclesiastical marriage, 299 n. 4;
replies to Scheurl, 340 n. 1.
Bigamy: first statute for, ii, 83 n. 2, 84 n. 1.
---- frequent in early New England, ii, 158, 159;
in Massachusetts, 347;
how punished under Duke's law, 286 and n. 1;
under Dongan law, 295.
Bingham, J.: on marriage before a priest, i, 297 n. 1.
Birds: family among, i, 95, 96.
Birth rate: falling, iii, 242, 243.
Bishop, J. P.: on Foljambe's case, ii, 82 n. 2;
on effect of divorce for adultery, 93 n. 3;
quoted, 262 n. 5, 366, 367, 370;
his _Marriage, Divorce, and Separation_, iii, 27.
Black George of Servia, i, 190 n. 1.
Blackstone. Sir W.: on religious celebration, i, 314 n. 4;
witnesses in civil law courts, ii, 107 n. 2.
Bliss, W. R.: on rum and slavery, ii, 220 nn. 3, 5.
Blood-feud: a restraint on wife-capture, i, 178 and n. 2;
check on divorce, 249.
Boaz, Franz: on the marriage customs of the Kwakiutl, i, 190, 191,
219 n. 3.
Bocca: divorce in, i, 244 n. 2.
Bodio, L.: on the marriage rate, iii, 214.
Boehmer, G. W.: on folk-laws regarding divorce, ii, 36 n. 3;
on jurisdiction in Carolingian era, 50 n. 1.
Boehmer, J. H.: attacks Luther's doctrine of betrothal, i, 373 n. 3.
Bogos: forbidden degrees among, i, 126.
Bohemians: wife-purchase among, i, 159 n. 8.
_Bona gratia_ divorce, ii, 31, 33.
Bonaks: divorce among, i, 239.
Bond, J.: on the Hardwicke Act, i, 449, 450, 451 n. 2.
Bond: required of ministers to celebrate marriages, in Virginia, ii,
412, 413;
West Virginia, 413;
formerly in Louisiana, 420;
Kentucky, iii, 188.
Bonwick, James: on divorce among Tasmanians, i, 232 and n. 5.
Bosnia: effects of divorce in, i, 242.
Bosom-right, i, 187 n. 1.
Botsford, G. W.: his _Athenian Constitution_, i, 7;
on the _rita_ conception, 25 n. 3;
on agnation, 29 n. 4.
Boyd, Rev. John, ii, 248.
Bozman, J. L.: quoted, ii, 239.
Bracton: on divorce and dower, ii, 93.
Bradford, Governor William: on origin of civil marriage in Plymouth,
ii, 128, 129.
Bradford, John: on nature of marriage, i, 398.
Braintree, Mass.: church confessions in, ii, 197, 198.
Braknas, the Moorish: effects of divorce among, i, 244 n. 2.
Brand, J.: on Danish _hand-fasting_, i, 276 n. 3.
Branner, J. C.: translations by, acknowledged, i, 105 nn. 1, 4.
_Brautjagd_, i, 175 and n. 1.
_Brautlauf_, i, 175 and n. 1.
Brazilian aborigines: marriage by service among, i, 186 and n. 6;
free divorce, 228 n. 2.
Breach of promise suits: in early New England, ii, 200-203;
in New Netherland, 281, 282.
Brehm, A. C.: on the social life of birds, i, 95, 96 and n. 3.
Brenz, J.: on divorce, ii, 62;
favors death for adultery, 66;
inclines to concubinage rather than allow full divorce, 71.
Brereton, Sir William: on marriage in the Netherlands, i, 409 and
n. 3.
Brett, Rev. D., ii, 248.
Brevard: quoted, ii, 261, 263, note;
on the marriage celebration in South Carolina, 416.
Bridal veil, i, 295 and n. 3.
Bride-mass, i, 291, 296, 297, 299, 309.
Bride-price, i, 189-201, 210-23.
Bride-stealing: sham, in New England, ii, 140, 141.
(_See_ Wife-capture.)
Bride-wooer, i, 197 and n. 6, 198.
Brissonius, B.: on the marriage ring, i, 279 n. 1.
Brittanie, James, and Mary Latham: executed for adultery, ii, 170
and n. 3.
Brougham, H.: his marriage law for Scotland, i, 473 n. 2.
Browne, G. F.: on remarriage of divorced persons, ii, 112 n. 2.
Browne, W. H.: quoted, ii, 242 n. 1.
Brun, S. J.: cited, iii, 169 n. 1, 216 n. 4.
Brunner, H.: on wife-purchase, i, 260 n. 1.
Bryce, James: quoted, iii, 204 n. 1, 213;
criticised, 221;
social morality in America, 252.
Bucer, Martin: Cartwright's criticism of, i, 411;
Milton on, 411 n. 2;
vicious effects of canonical doctrine of divorce, ii, 60 n. 3;
liberal views on divorce, 65;
casuistry in favoring divorce for desertion, 74 n. 3;
doctrines stated, 75, 86.
Buckstaff, F. G.: on status of early German woman, i, 260 n. 1;
wife-purchase, 263 n. 4.
Bugenhagen, J.: writes earliest Protestant marriage ritual, 375
n. 2;
on divorce, ii, 62;
favors death for adultery, 66.
Buginese: divorce among, i, 226, 241 n. 6.
Bulgaria: effects of divorce in, i, 242.
Bullinger, H.: quoted, i, 349;
cited, 375 n. 3, 398, 399;
liberal views on divorce, ii, 64;
his _Christen State_, 72, 73.
Bundling: in New York, ii, 181;
Holland, 182;
New England, 182-85;
influenced by pre-contract, 185,186;
New Netherland, 271, 272, 279;
Pennsylvania, 272.
Bunny, E.: on divorce, ii, 81 and n. 3.
Bunting _v._ Lepingwell, i, 376 n. 2.
Burgundians: wife-purchase among, i, 265.
Burma: proof-marriages in, i, 49;
marriage with sister allowed, 125;
freedom of widows, 209 n. 6;
free marriage, 215;
free divorce, 226.
Burn, J. S.: on the kiss at the nuptials, i, 279, note;
parish registers, 361, 362 and note;
parish records during the Commonwealth, i, 426;
Peter Symson's hand-bill, 438 n. 2;
Fleet registers, 445, 446;
on marriages at Savoy, 460, note;
Charles James Fox and the Hardwicke Act, 463 n. 2.
Burnaby, A.: on tarrying, ii, 183 n. 5.
Burnet, Bishop G.: on Henry VIII.'s divorce and the Northampton
case, ii, 23 n. 1.
Burras, Ann: marries John Laydon, ii, 235, 236.
Bushmans: marriage by service among, i, 189;
whether free marriage among, 214.
Cahyapós, i, 107.
Caird, Mona: on effect of patriarchal rule on woman's constitution,
iii, 241;
marriage and the state, 251 n. 2.
California: marriage celebration in, ii, 464, 465;
witnesses, 466;
contract marriage, 467, 468;
requisites for a legal marriage, 469;
definition, 471;
age of consent and of parental consent to marriage, 472, 473;
forbidden degrees, 473-75;
void and voidable marriages, 475-78;
miscegenation forbidden, 478;
license, 487, 488;
return, 489 and n. 8, 490, 491;
marriage certificate and celebrant's record, 492;
state registration, 495;
divorce, iii, 136-39;
remarriage, 149-51;
estate of Wood, 151;
residence, 156;
notice, 158;
soliciting divorce business forbidden, 160;
rejects common-law marriage, 181;
age of consent to carnal knowledge, 202.
California Indians: marriage customs of, i, 192 and n. 1;
courtship among, 213 n. 5;
divorce, 239.
Calvin, John: on divorce, ii, 62.
Campbell, Douglas: on influence of Holland on English and American
institutions, ii, 130 n. 1.
Campbell, James: abducts Mrs. Wharton, i, 442 n. 2.
Canada: divorce rate of, iii, 211, note.
Canon law: origin of betrothal forms under, i, 293 and n. 1;
validity of unblessed marriages, 297;
antagonism between legality and validity of marriages, 312, 314, 315;
validity of clandestine contracts _de praesenti_ sustained by, 314-16;
divorce under, ii, 47-60.
Canonical theory: rise of, i, 324;
literature of, 321;
evil effects, 340-50.
(_See_ Jurisdiction, Legality and validity.)
Carlier, A.: error of, regarding marriage in early New England, ii,
128 n. 1;
influence of Mosaic code on the Puritans, 152 n. 1.
Capitulary of 802, i, 298 and n. 2.
Capitularies: regarding divorce, ii, 41-44.
Caribs: women of, have separate language, i, 158 and n. 5;
free marriage, 212;
divorce rare, 247 n. 6.
Carpenter, E.: quoted, iii, 230.
Carthage, Council of: requires benediction, i, 313 n. 2;
on divorce, ii, 27 and n. 4, 38.
Cartwright, Thomas: his controversy with Whitgift, 410-14;
on ecclesiastical matrimonial jurisdiction, 412-14;
the English marriage ritual, i, 301 n. 3.
Castañeda: on sacred prostitution, i, 52 n. 1.
Cato: lends wife Marcia to Hortensius, i, 50 n. 1; ii, 17 n. 4.
Catts, Cornelius van: will of, ii, 282, 283.
Catullus: his nuptial hymn quoted, i, 171.
Cauderlier, G.: on the marriage rate, iii, 214.
Celebration of marriage. (_See_ Solemnization.)
Celibacy of clergy: literature of, i, 321, 322;
more holy than wedlock, 325;
bright side of, 330-32:
rejected by Luther, 389;
slow abandonment of, in England, 394-98.
Celts: whether _patria potestas_ among, i, 29, 30;
symbol of rape, 172,173.
Certificate and record of marriages: in New England, ii, 401-8;
southern and southwestern states, 441-52;
middle and western states, 481-97;
defects of the license system, iii, 190-94.
Ceylon: marriage with a sister allowed in, i, 125;
polyandry in, 140;
Veddahs of, 142 and n. 2.
Cicero: on divorce, ii, 16;
repudiates Terentia, 17 n. 4.
Chambioás: wives among, burned for adultery, i, 109.
Circumcision, i, 206 n. 2.
Chalmers, George: quoted, ii, 250 n. 1.
Charruas, the African: free divorce among, i, 226 n. 3.
Chemnitz, Martin: on divorce, ii, 62 and n. 3.
Child-betrothals: in Australia, i, 181;
elsewhere, 208, 209 n. 1;
in the age of Elizabeth, 399-403.
Child-marriages: in the age of Elizabeth, i, 399-403.
Chinese: relationship among, i, 68;
secondary wives among, 144;
authorities on matrimonial institutions of, 153, 154, 224;
symbol of capture, 172 and n. 3;
wife-purchase, 195 and n. 3;
divorce, 231, 235-37, notes, 242 n. 1, 248.
Chippewayans, i, 146, 213.
Chlodwig and Chlotilde: marriage of, i, 264 and n. 2.
Chosen guardian in the nuptial ceremony, i, 381;
superseded by the priest, 308.
Chrysostom: cited, i, 294;
on divorce, ii, 27 and n. 3.
Church confession of ante-nuptial incontinence: in Massachusetts,
ii, 190, 191 and n. 2, 195-99.
Church ordinances: on divorce, ii, 67, 68.
Church accepts lay form of marriage, i, 291.
Clan: older than family, according to Morgan, i, 66;
and Starcke, 113, 114.
Clandestine marriages: canon of Council of London on, i, 313 and
n. 4;
that of Archbishop Richard, 313,314;
constitution of Archbishop Walter, 314;
those _de praesenti_ valid, 314, 315;
in England and Scotland, 316;
the fruit of the canonical theory, 340-50;
legal in England after Reformation, 376-80;
in St. James, Duke's Place, 436 n. 1;
the Fleet and elsewhere, 437-48;
bills in Parliament on, 446 n. 4.
---- in the New England colonies, ii, 203-12;
Virginia, 235;
New Jersey, 313;
in the United States, iii, 188-92.
Clement of Alexandria: on second marriages, ii, 25 n. 2.
Clerk of the writs: registers marriages in Massachusetts colony,
ii, 145, 146.
Clerk or reader of the parish: publishes banns and administers
license law in Virginia colony, ii, 232, 234.
Clothes: do not originate in feeling of shame, i, 206 n. 2.
_Codex Justinianus_: influence of, on Dutch law, ii, 268.
Code Napoléon, iii, 169.
Cochrane _alias_ Kennedy _v._ Campbell, i, 448.
Coeducation: social value of, iii, 245.
_Coemptio_, i, 171 n. 3, 199 and n. 5, 220; ii, 14 n. 4;
how dissolved, 15 n. 1.
_Coibche_: bride-price in Ireland, i, 200.
Coke, Sir Edward: secret marriage of, i, 441 n. 1.
Colden, C.: on divorces granted by the governor in New York, ii,
384, 385.
Colorado: marriage celebration in, ii, 464;
celebrant protected by license, 470;
definition, 470;
age of parental consent to marriage, 472, 473;
forbidden degrees, 473-75;
void and voidable marriages, 475-78;
miscegenation restrained, 478:
license, 487, 488;
return, 489 and n. 3, 490, 491;
divorce, iii, 129, 130;
remarriage, 149;
residence, 156;
notice, 158 n. 3;
intervention of attorney in divorce suits, 159;
common-law marriage, 177;
age of consent to carnal knowledge, 201.
Colors: as means of sexual attraction, i, 204, 205.
Columbian Indians: divorce among, i, 238.
Comanches, i, 213.
Common-law marriage: generally good in colonial New England, ii, 151
and n. 3;
Virginia, iii, 171, 172;
Maryland colony, ii, 262 n. 5, iii, 172;
North Carolina, South Carolina, and Georgia colonies, ii, 263,
note; iii, 172, 173;
probably good in New York province, ii, 295, 296;
evidence of Lauderdale Peerage case, 300-306.
---- history of, in the various states, iii, 170-85.
Commons, J. R.: quoted, iii, 226, 227.
Commissioners to join persons in marriage: in Plymouth, ii, 133;
Massachusetts, 133 and n. 4; 134 and notes.
Communism, sexual: Bachofen's view of, i, 40, 41;
theory of, accepted by many writers, 46 n. 5;
alleged survivals, 47-52;
views of various writers, 54-65;
Morgan's theory, 66-68;
McLennan's theory, 77, 78;
the problem of, i, 89-110.
Concubinage: tolerated by some leaders of the Reformation, ii, 71.
_Confarreatio_, i, 171 n. 3; ii, 14 n. 1;
how dissolved, 15 n. 1;
survived for _flamines_, 15 n. 2.
Confessions of ante-nuptial incontinence: cases of, ii, 186-99.
Confucius: rule of, as to divorce, i, 236.
Conjugal duty: refusal of, ii, 62 and n. 2.
_Conjugium initiatum_, i, 335.
---- _ratum_, i, 335.
Compiègne, Synod of: on divorce, ii, 42-44.
Connecticut the colony: obligatory civil marriage in, ii, 135 and
n. 4;
rise of ecclesiastical, 138;
contract and covenant, 147;
laws regarding single persons, 152, 153;
regulates courtship, 164;
imposes scarlet letter for adultery, 173;
for incest, 178;
pre-contract or betrothal required, 179;
espoused wife may be punished for adultery, 180;
bundling, 182, 183;
marriage with wife's sister voidable, 214;
early maturity of divorce law, 353, 354;
divorce statutes, 354;
legislative divorce, cases of, 355-60;
question of common-law marriage, iii, 174.
---- the state: celebration of marriages in, ii, 391, 393, 394;
age of parental consent to marriage, 396;
long survival of impediments of affinity, 397;
of scarlet letter, 398;
bars marriages of the epileptic and imbecile, 400;
survival of optional system of banns or posting, 401;
certificate and record, 404;
return, 405;
collection of statistics and record, 407, 408;
divorce: jurisdiction, kinds, and causes, iii, 13, 14;
remarriage, 21, 22;
residence, 24, 25;
notice, 25, 26;
alimony, 30 n. 1;
courts silent as to common-law marriage, 181, 182;
age of consent to carnal knowledge, 198;
divorce rate, 209, 212 n. 1.
Consanguine family, i, 67, 68.
Consanguinity: Morgan's classificatory and descriptive systems of,
i, 66-68;
forbidden degrees of, 121-32. (_See_ Forbidden degrees.)
_Consensus_, i, 291, 292, notes.
Consistorial courts: origin of, ii, 70, 71 n. 1.
Constantine: divorce law of, ii, 30, 31.
Contract: rise of the marriage, i, 152-223.
_Contract conjugal:_ described, iii, 168 n. 2.
"Contract marriage," ii, 467, 468.
Cook, F. G.: cited, ii, 252 n. 3;
on Dongan law, 295 n. 2;
Lauderdale Peerage case, 306 n. 2;
law of twenty-four proprietors, 311;
common-law marriage, iii, 171, 183, 184;
cited, 194.
Cooley, T. M.: decision of, in Hutchins v. Kimmel, iii, 177.
_Copula carnalis_, i, 385, 386, 388.
Corbusier, W. M.: on pairing season among the Apache, i, 99 n. 3.
Council of Trent: authorities on, i, 288, 289, 316 n. 1;
enforces ecclesiastical celebration, 315;
opens way for civil marriage, iii, 168. (_See_ Trent, Council of.)
Courtship: methods of male, i, 202-7;
free. 210-23;
regulated in early New England, ii, 162-66;
by Governor Wyatt of Virginia, 236, 237;
by Pennsylvania Quakers, 323 and n. 5, 324, 325.
Cousins, first: intermarriage of, legalized by Henry VIII., but
opposed in New England colonies, ii, 212, 213;
opposed by Pennsylvania Quakers, 322;
laws restricting, in various states, ii, 397, 433, 474.
_Couvade_, i, 36; said to arise in sexual taboo, 54;
theories of, 112 and n. 4.
Covenant, the marriage: distinguished from the contract in
Connecticut, ii, 147.
Coverdale, Miles: translates Bullinger's _Christen State_, ii, 72.
(_See_ Bullinger.)
Cowley, C.: quoted, ii, 280;
divorce cases collected by, 332, 370 n. 3.
Cowyll: bride-price in Wales, i, 200 n. 3.
Coyness: as ground of sham capture, i, 175, 176.
Cranmer, Archbishop: marries, i, 394, 395.
Crawley, Ernest: his _Mystic Rose_, i, 35;
on sexual taboo among Australians, 54;
class nomenclatures, 76;
the _couvade_, 112 n. 4;
incest and promiscuity, 131, note;
separate language of women as result of sexual taboo, 158 n. 5;
connubial and formal capture, 177 and n. 1;
tattooing and other mutilations, 206 n. 2.
Creeks, i, 104; liberty of choice among, 213.
Crete: symbol of capture in, i, 171.
Criminal conversation: action for, ii, 114.
Crnagora: divorce in, i, 244 n. 2.
Cromwell's civil marriage ordinance: authorities on, i, 404, 405;
historical significance of, 408;
discussion, 418-35;
cited in debates on Hardwicke Act, 451 n. 2;
and in discussion of the Unitarian bill, 462 and n. 1.
Cromwell, Frances: wedding of, i, 429-31.
Cromwell, Oliver: principles of his marriage law anticipated in New
England colonies, ii, 127.
Cromwell, Thomas: on registers, i, 362.
Crowning, i, 295 n. 5.
Cumberland, Duke of: contracts an irregular marriage, i, 449 n. 3.
Cunow, H.: his _Australneger_, i, 35;
on class systems, 72, 73;
on female kinship, 116;
Westermarck's theory of origin of horror of incest, 131 n. 1;
exogamy, 131 n. 1;
absence of wife-purchase among low races, 124 n. 2.
Curr, E. C.: his _Australian Race_, i, 35;
on autocracy of father among Australians, 46;
Australian class systems, 70, 71;
wife-capture in Australia, 169 n. 3.
Custis, John and Frances: their marriage agreement, ii, 237-39.
Cyclops, of Homer, i, 10 n. 3.
Cyprian: on second marriage, ii, 25 n. 2.
Cyprus: sacred prostitution in, i, 51 n. 1.
Dahn, Felix: on _mund_, i, 260, note.
Dakota, the: bride-price among, i, 191.
Dakota Territory: divorce laws, iii, 140-42;
divorce rate, 218 n. 3.
Dalrymple _v._ Dalrymple, i, 473 n. 2.
Damara: the bride-price among, i, 194;
divorce at pleasure of either spouse, 226.
Dane, Nathan: apologizes for Massachusetts slavery, ii, 217 n. 2.
Dargun, L.: on mother-right among early Aryans, i, 20-22;
distinguishes between power and relationship in maternal system,
22, 23;
his works, 33, 44 n. 1;
rejects theory of woman's political supremacy, 45, 46;
on successive forms of marriage, 58;
rejects Starcke's theory of female kinship, 114 n. 3;
on wife-capture, 157 and n. 2, 160;
classifies peoples having so-called marriage by capture, 164 n. 1;
symbolical rape among Slavs and Germans, 174, 175, 258.
Darwin, Charles: on monogamy and polygyny among lower animals, i,
96 n. 2, 97;
causes of sterility, 130 and n. 2;
numerical disparity of sexes, 137 n. 4;
sexual selection, 203-6;
standards or beauty, 207 n. 5.
Davis, A. M.: cited, ii, 170 n. 1;
on stigma of scarlet letter, 171 nn. 2, 3, 174, note, 178 n. 4.
Dawan, west Timor: divorce in, i, 241, 245 n. 2, 247 n. 2.
Dawson, James: divorce, 232 and n. 3, 239;
divorce in West-Victoria, i, 229, 230.
Deccan: wife-capture in, i, 160.
Deceased wife's sister question, i, 353, 354;
ii, 96-102.
Decree _nisi_: in Massachusetts, iii, 8, 9;
Maine, 18;
Rhode Island, 22;
New York, 104;
Oklahoma, 83;
California, 151, 152.
Definition of marriage: none in New England states, ii, 395;
in southern and southwestern states, 427, 428;
in middle and western states, 470, 471.
Defoe, Daniel: on an academy for women, iii, 237.
Delaware, the colony: marriage laws of, ii, 320 n. 6.
---- the state: marriage celebration in, ii, 457, 458;
age of consent and of parental consent to marriage, 472, 473;
marriage of indented servants, 473;
forbidden degrees, 473-75;
void and voidable marriages, 475-78;
miscegenation restrained, 478, 479;
marriage of paupers restrained, 479;
optional system of banns or license, 482, 483;
return, 489 and n. 3, 492;
celebrant's record, 492;
state registration, 493;
legislative divorce, iii, 100, 101;
judicial divorce, 111-13;
remarriage, 146;
residence, 153;
courts silent as to common-law marriage, 182;
age of consent to carnal knowledge, 201 and n. 10;
divorce rate, 209, 210.
Delbrück, Berthold: rejects theory of maternal family among
Indo-Germanic peoples, i, 20;
on Bachofen, 39 n. 2.
Demetrian mother-right, i, 40, 41 n. 1.
Denison, widow: courted by Sewall, ii, 157 n. 2, 205, 206.
Denmark: marriage rate of, iii, 214, 215.
Denton, W.: quoted, i, 359 and n. 2.
Desertion: cause of divorce, at Reformation, ii, 62;
in England, 74;
meaning broadened, 62, 63 nn. 1, 2;
recognized by the _Reformatio legum_, 78.
D'Evreux, Père Yves: on incest among Brazilian natives, i, 126 n. 1.
Dhama: ordinance of Varuna, i, 24.
Dharma: stage among Aryans, i, 24, 25;
position of purchased wife, 217 n. 2.
Dieckhoff, A. W.: on time of _gifta_, i, 272 n. 1;
Sohm's view of betrothal, 275 n. 2;
works of, 288, 290;
_consensus_, 292 n. 3;
benediction, 296 n. 1, 297, 298 and n. 1;
marriage at church door, 299 n. 4;
rise of ecclesiastical marriage, 310 n. 1;
exchange of rings, 375 n. 3.
Dieri: form of marriage among, i, 72 n. 6.
_Diffarreatio_, ii, 15 n. 1.
Dike, S. W.: his work for the National League, iii, 204;
quoted, 205 n. 3, 207;
on divorce rate, 209, 210, 211, 212, 218 nn. 2, 3;
remarriage after divorce, 219 n. 1;
methods of securing uniform divorce law, 222 n. 3;
his works cited, 225 n. 1;
on alleged loss of capacity for maternity by American women, 242;
emancipation of woman and property, 247 n. 2.
Dilpamali marriage, i, 72 n. 6.
Dionysius: cited, ii, 16, note.
"Directory of Public Worship," 1645: marriage ritual of, i, 417.
Disobedience to parents: death penalty for, in New England colonies,
ii, 162.
Dispensations, ii, 55, 56; abuse of, 59 n. 2;
kinds, 60 n. 2.
Dissenters: oppressed by the Hardwicke Act, i, 460-65;
enjoy their own rites in Maryland, ii, 241, 243, 244;
marry contrary to law in colonial Virginia, 232;
not allowed to solemnize marriages in North Carolina, 251, 252-54;
Presbyterians gain partial liberty, 1766, 254-57;
their protests, 257, 258;
practical liberty in South Carolina and Georgia, 260-63.
District of Columbia: celebration of marriage in, ii, 415;
marriage of freedmen, 426;
age of consent and of parental consent, 428-30;
forbidden degrees, 433, 435;
void or voidable marriages, 435 n. 3, 436, 437, 438;
survival of optional system of banns, 444;
present license system, 447;
certificate to married pair, 450;
return, 449, 450;
divorce, iii, 78, 79;
remarriage, 80;
residence, 86;
process, 89;
intervention by attorney, 90;
common-law marriage, 176;
age of consent to carnal knowledge, 199:
divorce rate, 210.
Divorce: early history of, i, 224-50;
where marriage dissolved at pleasure of either spouse, 225-28;
where marriage indissoluble, 228;
where by mutual consent, 229, 230;
where the man has the right, 231-38;
where the woman also has the right, 238-40;
the form, 240, 241;
legal effects, 241-47;
frequency, 247-50;
checked by wife-purchase and the blood-feud, 249 and n. 1.
---- under English and ecclesiastical law: authorities, ii, 3-11;
Grecian, Hebrew, and Roman elements of the Christian doctrine,
11-19;
scriptural teachings, 19-23;
views of the early Fathers, 23-28;
legislation of the Christian emperors, 28-33;
compromise with German custom, 33-46;
final settlement of doctrine in the canon law, 47-52;
two kinds of so-called divorce distinguished, 52, 53;
grounds of divorce _a mensa_, 53, 54;
exceptions allowed, 54-56;
use of papal dispensations, 55;
policy of Council of Trent, 59, 60;
Protestant doctrine, 60;
opinions of Luther and the continental Reformers, 60-71;
those of the English Reformers, 71-85;
Milton's views, 85-92;
void and voidable contracts, 92-95;
Lord Lyndhurst's act, 95, 96;
marriage with deceased wife's sister, 96-102;
parliamentary divorce, 102-9;
present English law, 109-17.
---- in the New England colonies: authorities, ii, 328, 329;
effect of Reformation, 330;
separation from bed and board nearly abandoned, 330;
Hutchinson's statement, 330, 331;
Massachusetts, early law, 331, 332;
table of cases for seventeenth century, 333;
select cases discussed, 334-39;
in Massachusetts during second charter, 339-41;
tables of cases, 341-44;
discussion of select cases, 345-48;
in New Hampshire, 348,349;
Plymouth, 349-51;
New Haven, 352, 353;
Connecticut, 353-60.
---- in the southern colonies: English divorce laws in abeyance, ii,
366, 367;
divorce courts not created, 367;
separate alimony by local courts in Virginia, 368-71;
same in Maryland, 371-74;
Carolinas and Georgia, 375, 376.
---- in the middle colonies, ii, 376;
cases in New Netherland, sometimes with arbitration, 376-82;
New York province, 382-85;
New Jersey, 385;
Pennsylvania and Delaware, 385-87.
---- in the New England states: authorities, iii, 3;
jurisdiction, kinds, and causes, 4-18;
remarriage, 18-22;
residence, 22-25;
notice, 25-27;
alimony, property, and custody of children, 28-30.
---- in the southern and southwestern states: legislative divorce,
iii, 31-50;
judicial divorce: kinds and causes, 50-79;
remarriage, 79-84;
residence 84-88;
notice, 88, 89;
alimony, property, and custody of children, 90-95.
---- in the middle and western states: legislative divorce, iii,
96-101;
judicial divorce: kinds and causes, 101-44;
remarriage, 145-52;
residence, 152-57;
notice, 158;
miscellaneous provisions, 158-60.
(_See_ Separation from Bed and Board.)
---- administration: character of, in United States, iii, 207, 208.
---- clandestine: evils of, iii, 205, 206.
---- legislation: resulting character of, iii, 203-23.
---- legislative. (_See_ Legislative divorce.)
---- rate: in United States, 209-11;
higher in cities, 211;
in Europe, 212;
falls in hard times, 215;
how influenced by legislation, 216-19.
---- statistics, iii, 209-19.
---- and the problem of the family, iii, 250-53.
---- granted by the governor in New York province, ii, 384, 385.
---- not provided for by Cromwell, i, 420, 421.
Dobrizhoffer, J. V. de: on jealousy among Abipones, i, 105, 126
n. 1;
on cohabitation in turn among, 145;
cited, 155;
liberty of choice, 212, 213.
_Domum deductio_, i, 171 n. 3.
Dorsey, J. O.: on the Sioux, i, 143 n. 1, 144;
elopement among Omahas, 168;
symbolical rape among Poncas, 169 n. 1;
free marriage among Omahas, 212 n. 4;
avoidance of mother-in-law, 187 n. 2;
effects of divorce, 242 n. 1.
_Dos ad ostium ecclesiae_, i, 269.
(_See_ Dower.)
_Douaire_: the Norman, i, 269.
Dower: origin of, i, 219-21, 249;
in England, 269;
at church door, 299, 300 n. 1, 307 n. 4;
full rights of, denied in case of unblessed unions, 314, 315, 355;
of the widow in case of divorce, 357; ii, 93.
Dowries: higgling of, ii, 203.
Doxy, Ralph, and Mary Van Harris: illegal marriage of, ii, 278, 279.
Doyle, J. A.: cited, ii, 250 n. 1.
Drisius (Driesius), Dominie, ii, 291 n. 4, 379.
Dudley, Joseph: authorizes optional civil or ecclesiastical
marriage, ii, 135, 139.
Dunstan, canons of: enforce doctrine of indissolubility, ii, 40.
Dunton, John: on Boston old maids, ii, 157, 158, 167.
Duogamy: among American aborigines, i, 143 n. 1.
Durfee, Judge: on legislative divorce in Rhode Island colony, ii,
365.
Düsing, Carl: on causes determining sex of offspring, i, 138, 139.
Duyts, Laurens: sells his wife, ii, 280.
Earle, Alice Morse: on New England wedding customs, ii, 140, 141;
colonial drinks, 141 n. 5;
early and frequent marriages in New England, 157 n. 2;
breach of promise in New Netherland, 282 n. 1;
joint wills in New Netherland, 283 n. 1;
banns and license in New York province, 297, 298;
Quaker marriage customs in Pennsylvania, 323 n. 5, 324, 325, 326;
separations in New Netherland, 378;
Lantsman's case, 379, 380;
other cases, 380, 381.
Ecclesiastical marriage: authorities on, i, 287-90, 321-24;
rise of, 291-363.
(_See_ Marriage, Divorce.)
Economic forces in the evolution of matrimonial institutions, i,
60-63;
according to Hellwald, 93, 94;
influence on rise of system or female kinship, 113, 114 n. 3,
115, 116;
on rise of polygyny, 145;
on condition of woman, 146 n. 1;
effect of share in labor, 211 and n. 4, 213 n. 5;
importance of, in the present problems of marriage and the family,
iii, 235, 246-50.
Education: function of, as to marriage and family, iii, 223-59.
Edwards, Jonathan, and the Northampton revival, iii, 197, 198.
Edwards, Richard: divorce of, ii, 357, 358.
Edwin W., and Mary Whitehead: their marriage the first recorded in
Maryland, ii, 239.
Egbert, pontifical of, 298.
Egyptians: prostitution of girls among, i, 49 n. 1;
concubines among, 144;
high domestic ideal, 221 n. 3.
Elizabeth, daughter of James I.: public spousals of, i, 381 n. 2.
Elizabeth, Queen: resists marriage of priests, i, 396-98.
Ellesmere, Lord Chancellor: secret marriage of, i, 441 n. 2.
Elopement, i, 169, 170 and note;
or abduction, 182-84;
a means of free choice, 212.
Elvira, Council of: on second marriage, ii, 25, 26.
Emperors, the Christian: their legislation regarding divorce, ii,
28-33.
Endogamy: McLennan's theory, i, 88 and n. 3, 117;
Tylor's view, 121;
Starcke's view, 124, 125;
clan, 131, 132;
coexistence of, with exogamy, 178 and n. 3.
Engels, F.: his theory of the family, iii, 229, 230.
England: law regarding celebration, iii, 190;
the divorce rate, 213.
England and Wales: divorce rate of, iii, 211, note.
Epiphanius: on divorce, ii, 24;
second marriage, 25.
Epileptic and imbecile: marriages of, restrained in Connecticut,
ii, 400;
Minnesota and Kansas, 480.
Erasmus, Desiderius: his liberal view on divorce, ii, 64.
Eskimo: wife-lending among, 49, 50 and n. 1;
polyandry, 87;
restricted polygyny among, 143 n. 1;
symbolical capture, 164, 165;
choice of bride by bridegroom's mother, 187 n. 3;
free divorce, 227, 228 and n. 1;
but divorce rare, 247 n. 6.
Esmein, A.: on _Lex Julia_, ii, 16 n. 2, 17 n. 1;
Augustine's doctrine or divorce, 27 nn. 1, 2;
Gregory II.'s decrees, 39 n. 1;
decree of council of Hertford, 40 n. 1;
synods of Verberie and Compiègne, 43, 44, notes;
evolution of term _divortium_, 53 n. 1;
on rejection of divorce _a mensa_, 61;
marriage as a remedy, i, 326 n. 1;
presumptive marriage, 338;
cited, 339.
Espinas, A.; cited, i, 98;
on sexual selection, 205 n. 4.
Estate of Wood: case of, iii, 151.
Ests, i, 172.
Ewald, G. H. A. v.: on Hebrew paternal power, i, 17 n. 5.
Exogamy: relation of, to Roman _patria potestas_, i, 31;
rule of the _gentes_, 68 n. 4, 69;
relation to class systems, 72 n. 5;
McLennan's theory, 85, 117, 156;
the problem of, 117-32;
coexistence of, with endogamy, 178 and n. 3.
Expiation for marriage, i, 50 and n. 2.
Fabiola: her divorce and remarriage, ii, 28.
Fabricius, Jacob: case of, ii, 278 and n. 2.
Family: as social unit, i, 9, 10, 12;
the Roman or patriarchal, of Maine, 10-13;
among early Aryans, 25-27;
among Hellenes, 28, 29;
matriarchal, 37, 38;
"gynocratic" and "androcratic" distinguished, 44 n. 1;
stages in the evolution of, 54 and n. 2, 55-65;
Morgan's five phases of, 66-70;
the pairing, theory of, 89-151;
among lower animals, 89, 91-102;
the problem of the successive forms of, 132-50.
---- the Teutonic, i, 8;
the early Christian, 329, 330;
compared with the Stoic, 330.
---- problems of, iii, 161-259;
monogamic the type, 224;
alleged disintegration of, 225-29;
views of socialists on, 229-35;
and the liberation of woman, 235-50.
(_See_ Marriage, Matriarchate, Mother-right, Divorce.)
Family council: in Louisiana, ii, 431-33.
Fantis, African: effects of divorce among, i, 243.
Farnshill v. Murray, ii, 373.
Farr, W.: on the marriage rate, iii, 214.
Fathers, the Christian: on the form of marriage, i, 293 n. 3.
Fawcett, H.: on the marriage rate, iii, 214.
Federal law of divorce: movement for, iii, 222, 223.
Feilding's case, i, 447.
Felups of Fogni: easy divorce among, i, 226.
Female infanticide, i, 78, 79, 87.
Fenton _v._ Reed, ii, 303 n. 3, 304; iii, 175 and n. 2.
Fernow. B.: on marriage law of Guelderland, ii, 268.
Festuca: in place of the _arrha_, i, 268.
Festus: quoted, i, 171 n. 4.
Ficker, Julius: denies sex-tutelage under Frank law, i, 259 n. 1;
on alleged _Vidumsehe_ of Tacitus, 262 n. 2.
Fighting for wives, i, 203.
Fiji Islanders: wife-capture among, i, 159.
Filmer, Sir Robert: his _Patriarchia_, i, 3, 16, 17.
Finch, N.: his marriage with sister-in-law annulled, ii, 214.
Finck, H. T.: cited, i, 104 n. 1;
on symbol of rape, 175 n. 3;
sexual selection, 205 n. 4.
Fison, Lorimer: writings of, i, 34, 35; on Australian class systems,
66, 70;
criticised by Curr, 70, 71.
---- and Howitt, A. W.: their _Kamilaroi and Kurnai_, i, 34, 70;
on elopement and wife-stealing, 169 n. 3.
_Flamines_: their marriage by _confarreatio_, ii, 15 n. 2.
Flecknoe's _Diarium_: cited on the marriage law of 1653, i, 432
n. 2.
Fleet marriages: authorities on, i, 405;
discussion, 437-46, 453;
effect of Hardwicke Act on, 459 n. 3.
Fleet marriage registers, i, 442;
extracts from, 445, 446.
Florida: marriage celebration in, ii, 417 n. 4;
marriages of freedmen, 426;
age of parental consent, 429, 430;
forbidden degrees, 433;
void or voidable marriages, 435 and n. 3, 436, 437;
miscegenation forbidden, 438, 439;
license system, 447;
return, 449;
divorce, iii, 68;
remarriage, 84;
residence, 86;
process, 88, 89;
alimony, 92;
common-law marriage, 176;
age of consent to carnal knowledge, 198.
Flower, B. O.: on prostitution in marriage, iii, 255.
Foljambe's case, ii, 82 n. 2, 83.
Folger, Chief Justice: on the common-law marriage, iii, 183.
Forbidden degrees: origin of, i, 121-32; under the canon law,
351-54;
restricted under Henry VIII., ii, 76;
how affected by Lyndhurst's Act, 96, 97.
---- in the New England colonies, ii, 212-15.
---- in the New England States, ii, 397, 398;
southern and southwestern states, 433-35;
middle and western states, 473-75;
reform in laws needed, iii, 194, 195.
Fornication before marriage: in Plymouth, ii, 186 and nn. 1, 2;
in Massachusetts, 186-99.
_Foster-laen_, i, 270 n. 1, 271.
Fox, George: on Quaker marriages, ii, 316, 317.
Fox, Henry: contracts a clandestine marriage, i, 449;
on the Hardwicke Act, 449, 450 n. 1, 451 n. 3.
Fox, Charles James: on the Hardwicke Act, i, 463 n. 2.
France: divorce in, iii, 168, 169;
divorce rate, 211, note, 212, 216 and n. 4;
matrimonial administration, 190.
Franks: _arrha_ among, i, 264;
the _tertia_ or dower of, 269.
Frederickse, M.: his marriage contract, ii, 284 n. 1.
Freedmen: marriages of, ii, 426, 427.
Freeman, E. A.: his theory of social expansion, i, 13 n. 2.
Freeman, F.: quoted, ii, 186 n. 2.
Freisen, Joseph: on confusion of scriptural texts on divorce, ii, 22
n. 2;
views of the Fathers on second marriage, 25 nn. 1, 2;
Council of Arles, 26 n. 4;
denies woman's right of divorce under German law, 37 n. 3;
_Lex Grimoald._, 38 n. 2;
Gregory II.'s decrees, 39 n. 1;
decree of Council of Hertford, 40 n. 1;
origin of papal matrimonial dispensation, 55 n. 4;
holds that early Christians accepted Jewish marriage forms, 291
n. 2.
French Revolution: marriage and divorce legislation of, iii, 168,
169.
Friedberg, Emil: on _mund_, i, 260 n. 1;
on time of _gifta_, 272 n. 1;
place of nuptials, 273 n. 1;
the three acts in joining in marriage, 274 n. 1;
Sohm's theory of self-betrothal, 279 n. 2;
on the _Fürsprecher_, 281, 282;
significance of guests at the nuptials, 285 n. 4;
works mentioned, 290;
time of bride-mass, 296 n. 3;
priest's function in the old English ritual, 302;
writers erroneously holding religious celebration essential to a
valid marriage, 314 n. 4;
decree of Council of Trent, 316 n. 1;
clandestine marriage, 348, 350;
valid marriage, 354 n. 4;
Luther's influence regarding civil marriage, 388, 389;
civil marriage in the Netherlands, 409 n. 2;
controversial literature of the Commonwealth, 432 n. 1;
Parson Lando's marriage notice, 439;
impunity of Fleet parson, 442, 443;
error of, regarding Cochrane _v._ Campbell, 448 n. 2;
English dislike of banns, 457;
Dutch marriage laws, ii, 268 n. 2.
Friedrichs, Karl: on headship of woman in the family, i, 45 and
n. 8;
forms of the family, 55;
defines marriage, 102 n. 1;
certainty of fatherhood, 117;
female kinship, 114 n. 3.
Frier _v._ Richardson, ii, 159, 332 n. 3.
Fritsch, G.: on polyandry, i, 135 n. 2;
bride-price among Kafirs, 193 n. 4, 214.
Friuli, Council of: enforces doctrine of indissolubility, ii, 39.
Fuegians: serving for wives among, i, 189.
_Fürsprecher_: in nuptial ceremony, i, 281, 282.
Fulke, W.: on nature of wedlock, i, 393.
Fundamental constitutions, ii, 247, 248 n. 3.
Furnivall, F. J.: on child-marriage, i, 399-403.
Gainaberg, maiden-market at, i, 50 n. 2, 199, 200 and n. 1.
Gainham, John, the Fleet parson, i, 440 and nn. 3, 4.
Gains: on _patria potestas_, i, 30;
_coemptio_, 199.
Galatæ, the Asiatic: _patria potestas_ among, i, 30.
Galela and Tobelorese: coexistence of purchase and pretended
rape among, i, 183;
divorce, 233 and n. 2, 248.
Gallinomero, of California: man's sole right of divorce among, i,
232.
Gallows, marriage at, i, 441 n. 3.
Gally, H.: his _Considerations_, i, 447.
Galwith _v._ Galwith, ii, 371, 372.
Ganowánian system of consanguinity, i, 68, 69.
Gardener, Helen H.: leader of crusade against age of consent laws,
iii, 196;
quoted, 197.
Gautier, Léon: on marriage rituals, i, 288, 300 and n. 2, 301 n. 2,
305 n. 3, 307 n. 4, 308.
Geary, N.: on English divorce courts, ii, 110 n. 2;
remarriage of divorced persons, 112 n. 2;
decree _nisi_, 113 n. 5;
separation orders, 117, notes.
Geffcken, H.: on the divorce of Ruga, ii, 15 n. 4;
freedom of Roman divorce, 17 and n. 1;
views of the Fathers as to second marriage, 24, 25 and n. 2;
Council of Arles, 26 n. 4;
Constantine's divorce law, 31 n. 3;
divorce among early Teutons, 34;
by mutual consent according to _pactus Alamannorum_, 35 n. 1;
death for adultery among Saxons, 36;
_Lex Burgundionum_, 37 n. 1;
absence or divorce laws in Merovingian era, 41 n. 2;
penitentials, 44 n. 2, 46 n. 5;
one-sided divorce among Germans, 48 and n. 2;
how the church enforced her rules regarding divorce, 49 n. 1;
denies ecclesiastical jurisdiction in time of the Carolings, 50
and n. 1;
triumph of the spiritual jurisdiction, 51 n. 1.
_Gentes_, i, 13, 28, and _agnatio_, 30;
Grosse on, 62;
origin of, according to Morgan, 68.
(_See_ Clan.)
Georgia, the colony: marriage in, ii, 261, 262;
divorce, 375, 376;
question of common-law marriage, iii, 172, 173.
---- the state: marriage celebration in, ii, 416, 417;
unauthorized solemnization, 425;
marriages of freedmen, 426, 427;
age of parental consent, 429;
forbidden degrees, 433, 435;
void or voidable marriages, 435 n. 3, 436, 437, 438;
miscegenation forbidden, 439;
encourages marriage, 441;
has dual system of banns or license, 444, 445;
license where obtained, 447;
return, 449;
legislative divorce, iii, 42-49;
judicial divorce, 61, 62;
remarriage, 81, 82;
residence, 85;
process, 89;
trial by jury, 90;
separate alimony, 92;
dower barred by permanent alimony, 95;
common-law marriage, 176;
age of consent to carnal knowledge, 200.
Germans, the early: the family among, i, 8;
paternal power among, 28 n. 2, 30;
wife-lending, 49;
wife-capture, 159, 258;
symbol of capture, 174, 175;
divorce, 232;
wife-purchase, betrothal, and nuptials, 253-86;
divorce, ii, 4, 5;
compromise with their divorce customs, 33-46;
divorce a private act, 47, 48.
German empire: matrimonial administration, iii, 190;
the divorce rate and divorce law, 211, note, 212, 221, 222 and
n. 1.
Get, or bill of divorce, ii, 13 nn. 2, 4.
Gibbs, Mary: marries Sewall, ii, 208, 209.
_Gifta_: or tradition of the bride, i, 259, 272-76;
importance of, as compared with the _beweddung_, 273-76;
self-_gifta_, 276-86;
after the conversion, 296;
_ante ostium ecclesiae_, 299 and n. 4, 300 n. 1;
in old English ritual, 302;
as _sponsalia de praesenti_, 305;
in England at Reformation, 312;
self-_gifta_ in New England colonies, ii, 209-11;
in Pennsylvania, 456.
Gilchrist, Chief Justice: opinion of, in Dumbarton _v._ Franklin,
iii, 183 n. 1.
Giraud-Teulon, A.: works of, i, 33;
on woman's political domination, 44;
expiation for marriage, 50 n. 2;
the _couvade_, 112 n. 4.
Gladstone, W. E.: on deceased wife's sister question, ii, 100 n. 3;
resists divorce law of 1857, 110.
Glanville: cited on _dos_, i, 269;
on divorce and dower, ii, 93.
Glasson, E.: on bride-sale, i, 260 n. 1, 263 n. 4;
on Roman divorce, ii, 17;
laws of Æthelberht, 40, note.
Gloucester, Duke of: contracts an irregular marriage, i, 449 n. 4.
Göhre, P.: cited, iii, 228 n. 1.
Goeschen, O.: on grounds of divorce, ii, 67, 68.
Goodwin, J. A.: on fornication before marriage, ii, 186 and n. 1;
divorce, 332;
divorce in Plymouth, 350, 351.
Grant, Ann: on marital life in New York, ii, 300.
Gratian: his theories regarding marriage, i, 335, 336;
"master" of the canon law, ii, 47, 52;
special pleading on divorce, 51 n. 4;
his theory of unconsummate marriage accepted in the canon law of
divorce, 55, 56.
Graunt, John: on marriages under Cromwell's law, i, 426-28.
Gravesend: magistrates of, post marriage notice, ii, 269, 270, 274.
Gray, G. Z.: on deceased wife's sister question, ii, 98 n. 2.
Gray, Horace: on Oliver _v._ Sale, ii, 217 n. 2.
Greece: divorce rate of, iii, 212.
Greeks, the ancient: matrimonial institutions of, works on, i, 5;
wife-capture among, 160 and n. 4;
symbol of rape, 171;
wife-purchase, 199;
divorce, 232.
Green, John: assistant of Warwick, grants a divorce, ii, 364.
Greenlanders: avoid marriage with persons of same household, i, 127,
128;
symbolical capture, 165;
free marriage by elopement, 212.
Greenwich, Conn.: a "Gretna Green," iii, 192 n. 4, 205.
Gregory I.: his _Pastoral Care_ cited, i, 300 n. 1.
Gregory II.: his letter to St. Boniface, ii, 38, 39 n. 1.
Gregory Nazienzen, i, 294.
Gretna Green marriages, i, 473 n. 2.
"Gretna Greens" in the United States, iii, 192 n. 4.
Grimm, Jacob: on derivation of _Gemahl_, i, 273 n. 1.
Gronlund, L.: views of, as to the family, iii, 231, 232.
Groos, Karl: cited, i, 98;
on sexual selection, 205 n. 4.
Grosse, Ernst: on patriarchalism in low races, i, 45 n. 6;
forms of the family as influenced by economic forces, 60-63, 115,
116;
coexistence of mother-right and father-right, 110 n. 2;
the symbol of rape, 176 n. 1.
Grossmann, F. E.: on the Pima Indians, i, 143 n. 1.
Group-marriage: works on, i, 34, 35, 47 n. 2;
existence of, not proved by nomenclatures, 72, 73;
Kohler on, 73-75.
Grupen, C. U.: cited, i, 38, 52 n. 2;
on the Anglo-Saxon bride, 263 n. 4.
Gualala: their horror of close intermarriage, i, 126.
Guanas, i, 213 n. 5, 239.
Guatemalans: divorce among, i, 239.
Guatos, i, 108, 109.
Guaycurûs, i, 158;
custom of avoidance among, 187.
Guinea: marriage customs in, i, 83 n. 4.
Gurukkal or Caiva Brahmans: wife-purchase among, i, 198 n. 4.
Gynocracy, i, 40-43;
distinguished from mother-right, 44-46;
Kautsky on, 57, 58.
Habicht, H.: on the _mund_, i, 260 n. 1, 261 n. 1;
bride-price, 265 n. 4;
betrothal, 274 n. 2;
Sohm's theory of betrothal, 275 n. 2.
Haldane, George: on the Hardwicke Act, i, 454-56.
Hallam, Henry: on abuses in ecclesiastical courts, i, 414 n. 1.
Hallowell, R. P.: on Quaker marriages, ii, 316, 318.
Halsall case, ii, 331 and n. 4, 334.
Hancock, John: church confessions at Braintree under, ii, 197.
Hand-fasting: i, 235 n. 1;
in place of _arrha_, 269;
Brand on the Danish, 276 n. 3;
used in self-betrothal, 278;
in New England, ii, 210.
Handschlag. (_See_ Hand-fasting.)
Hanley Castle Missal, i, 311 n. 4.
Hardwicke Act: authorities on, i, 406, 407;
origin, 448;
popular interest in, 449;
debates on, 449-58;
provisions, 458, 459;
merits, 459, 460;
defects, 460-65.
Hartford: taxes lone men, ii, 153.
Harar, East African: effects of divorce in, i, 244 n. 2.
Hartmann, E. v.: on woman's mental capacity, iii, 240 n. 1.
Harwood, R.: his articles of courtship, ii, 245-47.
Hawaii: divorce in, iii, 144;
residence, 157;
legitimacy of children of divorced, 158;
courts silent as to common-law marriage, 182;
age of consent to carnal knowledge, 203;
license of clerical celebrant, 188.
Hawaiians: consanguine family of, i, 67, 68, 238.
Hawks, F. L.: quoted, ii, 250 and n. 1.
Head _v._ Head, ii, 375; iii, 46-50.
Head-officer of town: celebrates marriages in Rhode Island colony,
ii, 135 n. 1.
Hebraism: influence of, on New England Puritans, ii, 130, 131, 152
and nn. 1, 2, 162, 169, 179, 199, 200, 217, 352.
Hebrews: whether _patria potestas_ among, i, 15, 16, 19;
whether "beena" marriage or marriage by service among, 16 and
n. 3;
concubines among, 144;
authorities on matrimonial institutions of, 153;
wife-capture among, 161, 162;
wife-purchase, 196, 197;
divorce, 232;
divorce by Talmudic law, 240 n. 4;
divorce in general, ii, 3, 12-14, 20 nn. 2, 3, 21;
divorce a private transaction, 47.
(_See_ Hebraism.)
Hedge parsons, i, 446.
Hell, X. H. de: quoted on Kalmucks, i, 168.
Hellenes: family of, i, 28, 29;
wife-capture among, 160 n. 4;
wife-purchase, 199;
symbol of rape, 171.
Hellwald, Friedrich v.: his use of _menschliche Familie_, i, 7,
note;
on headship of woman in the family, 45 and n. 5;
evolution of forms of marriage and the family, 58-60;
differentiation of the sexes, 93;
origin of family among animals, 93, 94, 97, 98, 99;
origin of exogamy, 131 n. 1;
polyandry, 135, 148 n. 3;
the symbol of rape, 176 n. 1;
divorce in Islam, 233, 234.
Helms _v._ Franciscus, ii, 373, 374.
Henderson, C. R.: cited, iii, 164, 225 n. 1, 228 n. 1.
Henry VIII.: on registration, i, 362, 363;
clings to doctrine of clerical celibacy, 394;
his divorce, ii, 77 n. 1.
Hereford: marriage ritual of, i, 301, 303, 306 n. 2, 311 n. 4.
Hermas, Pastor of: on divorce, ii, 23, 24;
favors remarriage, 27, 28 and n. 1.
Herodotus: on sacred prostitution, i, 51 n. 1;
on wife-purchase, 199, 200.
Hertford, council of: on remarriage after divorce, ii, 40 and n. 1.
Herzegovina: divorce in, i, 244 n. 2.
Hetairism, i, 39;
legalized, 48 and n. 4, 49 n. 1;
as hetairistic monogamy, 56-58.
Heusler, Andreas: on family and _Sippe_, i, 102 n. 1;
wife-purchase, 179 n. 4;
wife-capture among Germans, 258 n. 1;
maintains existence of _patria potestas_ among, 260, note;
wife-purchase, 260 n. 1;
Tacitus's account of betrothal, 262 n. 2;
morning-gift, 269 n. 2;
_copula carnalis_ as the essential fact in marriage, 275 n. 2;
divorce among the early Teutons, ii, 34 n. 1.
High Commission Court: matrimonial jurisdiction of, i, 414.
Hieronymus: on divorce, ii, 24, 27.
Hildebrand, Richard: on the successive forms of marriage, i, 56;
criticised by Grosse, 61;
on rape and purchase, 184 n. 3.
Hillel: school of, ii, 13 and n. 2, 20 n. 2.
Hillsborough, Earl of: on the Hardwicke Act, i, 449, 451 n. 3.
Hincmar of Rheims: theory of, i, 335;
proves that adulterers were slain, ii, 44;
indissolubility enforced by, 44;
accepts decree of Council of Agde in divorce of Lothar and
Teutberge, 49 n. 3;
mentioned, 51.
Hindus: works on matrimonial institutions among, i, 3, 4;
the family, 19-27;
wife-lending, 49;
joint undivided families, 129;
wife-capture, 160;
wife-purchase, 197, 198.
(_See_ Aryans and Hindus, India.)
Hirschfeld, J.: cited, ii, 110 n. 4.
Hobart, Noah: on religious celebration of slave marriages, ii, 224.
Hodgetts, J. F.: on symbolism of the ring, i, 279, note.
Hofacker and Notter: quoted, i, 138 n. 1.
Hofmann, F.: on the wedding ring, i, 279 n. 1.
Holland: influence of, on rise of civil marriage in New England, ii,
128-30;
queesting in, 182;
bundling with public betrothals, 185 n. 4;
influences law of New Netherland, 268;
divorce rate, iii, 212.
Hollis _v._ Wells: regarding bundling, ii, 272.
Hollister, G. H.: on civil marriage under Andros, ii, 136 n. 1.
Honorius and Constantius: divorce law of, ii, 31.
Hooper, John: maintains woman's equal right of divorce, ii, 73, 74
nn. 1, 2.
Horde: discussion of, i, 33;
as unit of social evolution, 47 and n. 3;
according to Kautsky, 56;
according to Hellwald, 58;
Mucke's theory, 63-65;
McLennan's theory, 77-79.
Horse Indians of Patagonia, i, 158.
Hottentots: wife-capture among, i, 159;
divorce, 235;
remarriage of woman after divorce not allowed, 245.
Howard, Clifford: on survivals of phallicism, i, 51 n. 1.
Howitt, A. W.: writings of, i, 34, 35;
on elopement, 170;
wife-capture, 181.
Howland, Arthur: case of, ii, 163.
Howell the Good: laws of, on divorce, ii, 40, note, 41 n. 1.
Howsley, Bridget: case of, i, 424.
Hruza, Ernst: on wife-capture among ancient Hellenes, i, 160 n. 4;
unfavorable position of the Athenian woman, ii, 12 n. 3.
Huc, M: on bride-price in China, i, 195 n. 3.
Hubbard, Peter: prevented by magistrates from preaching at a
wedding, ii, 127 and n. 1.
Hull, Charles H.: cited, i, 427 n. 1.
Hull, Hannah: her dowry, ii, 204.
Humboldt, W. v.: on divorce by mutual consent, iii, 251.
Hunters: the family among, according to Grosse, i, 60-63.
Hurd, J. C.: on slavery in the colonies, ii, 217 n. 1.
Hurons: position of women among, i, 45 n. 6.
Husband-purchase, i, 185.
Husband-beating: in Plymouth and Salem, ii, 161 and n. 3.
Hutchins _v._ Kimmel, iii, 177.
Hutchinson, Thomas: on rise of civil marriage in New England, ii,
128;
marriage under Andros, 136;
prevalence of the religious ceremony, 140 n. 1;
divorce, 330, 331.
Huth, A. H.: on incest, i, 123 n. 1.
Idaho: marriage celebration in, ii, 464, 465;
witnesses, 465;
marriage by declaration, 467;
unauthorized solemnization, 468;
requisites for legal marriage, 469;
definition, 471;
age of consent and of parental consent to marriage, 472, 473;
forbidden degrees, 473-75;
void and voidable marriages, 475-78;
miscegenation restrained, 479;
license, 488;
return, 489 and n. 3, 491;
marriage certificate and celebrant's record, 492;
legislative divorce, iii, 98;
judicial divorce, 139, 140;
remarriage, 148, 149;
residence, 157;
notice, 158;
intervention of prosecuting attorney in divorce suits, 159;
courts silent as to common-law marriage, 182;
age of consent to carnal knowledge, 201.
Ignatius: on form of marriage, i, 293, 294.
Illinois: marriage celebration in, ii, 460, 461;
age of consent and of parental consent to marriage, 472, 473;
forbidden degrees, 473-75;
void and voidable marriages, 475-78;
license, 487, 488;
return, 489 and n. 3, 491;
legislative divorce, iii, 96;
judicial divorce, 119, 120;
remarriage, 147;
residence, 155;
notice, 158;
soliciting divorce business forbidden, 160;
divorce statistics, 160;
common-law marriage, 177;
age of consent to carnal knowledge, 202;
divorce rate, 210.
Illpirra, i, 170, note.
Impediments to marriage, i, 351-54;
among the Chinese, 235.
(_See_ Forbidden degrees.)
Incest: origin of the horror of, i, 121-32.
Indented servants: in Virginia colony, marriages of, ii, 235;
North Carolina, 253;
Pennsylvania, 320 n. 6;
Delaware, 473.
Inderwicke, F. A.: on surviving prejudice of Independents against
divorce, i, 420, 421;
the punishment of fraudulent marriages of minors during the
Commonwealth, 421-23.
India: phallic worship in, i, 52;
monogamy of Mohammedans in, 142, 145;
symbolical rape, 174;
free marriage, 215.
(_See_ Aryans.)
Indian Archipelago: wife-capture in, i, 159;
mentioned, 215;
position of woman in, 238 n. 3;
divorce, 241 n. 6.
Indiana: marriage celebration in, ii, 460, 461;
unauthorized solemnization, 468;
informal celebration, 469;
definition, 470;
age of consent and of parental consent to marriage, 472, 473;
forbidden degrees, 473-75;
void and voidable marriages, 475-78;
miscegenation forbidden, 479;
license, 488;
return, 489 and n. 3, 491;
state registration, 495;
legislative divorce, iii, 96, 97;
judicial divorce, 115-18;
remarriage, 147;
residence, 154;
intervention of prosecuting attorney in divorce suits, 159;
soliciting divorce business forbidden, 160;
divorce statistics, 160;
common-law marriage, 177;
age of consent to carnal knowledge, 202;
divorce rate, 211, 212.
Indian Territory: marriage celebration in, ii, 417, 418;
requisites for a legal marriage, 424;
a civil contract, 427;
age of consent and of parental consent, 428, 429;
forbidden degrees, 433;
void or voidable marriages, 437, 438;
miscegenation forbidden, 439;
license bond, 448;
return, 449 and n. 1;
divorce, iii, 72;
remarriage, 82;
residence, 87;
process, 89;
alimony, 91;
courts silent as to common-law marriage, 181;
age of consent to carnal knowledge, 199.
Individualism: does it threaten the family, iii, 225-29.
Ine: laws of, on wife-purchase, i, 267.
Infanticide, i, 78, 79, 87.
Infecundity: caused by promiscuity, i, 102, 103.
Infibulation, i, 111.
Inglebye: _Register Booke_ of, i, 429 n. 3.
Innocent I.: on divorce, ii, 27, 38.
Innocent III., i, 353;
requires banns, 314, 360.
Innuit, i, 104;
incest among, 126 n. 1;
monogamy, 143 n. 1.
Interlocutory decree of divorce: in New York, iii, 104;
California, 151, 152.
Iowa: marriage celebration in, ii, 464;
informal solemnization, 469;
definition, 470;
age of consent and of parental consent to marriage, 472, 473;
forbidden degrees, 473-75;
void and voidable marriages, 475-78;
license, 488;
return, 489 and n. 3, 491;
marriage certificate and celebrant's record, 492;
state registration, 495;
legislative divorce, iii, 98;
judicial divorce, 125-27;
remarriage, 148;
residence, 156;
common-law marriage, 177;
age of consent to carnal knowledge, 202.
Ireland: symbolical capture in, i, 173;
wife-purchase, 200 and n. 2;
present marriage law, 473 n. 2;
divorce rate, iii, 211, note.
Iroquois: position of woman among, i, 45 n. 6;
syndiasmian family of, 69;
long houses of, 129;
divorce, 239.
Irving, W.: on bundling, ii, 182.
Islam: matrimonial institutions of, i, 34;
restricted polygyny among, 142:
divorce, 233, 234 and notes;
effects of divorce, 246.
(_See_ Arabs.)
Jackson, H.: case of, ii, 159.
Jacob: marriage of, with Laban's daughters, i, 16 and n. 3, 115,
188.
Jacops, Geertruyt: marriage contract of, ii, 283, 284.
Jameson, Judge: favors constitutional amendment, iii, 222 n. 3.
Japan: divorce in, i, 237, 248;
present divorce rate, iii, 210, 211, note.
Jealousy, sexual: checks promiscuity, i, 103-7.
Jeaffreson, J. C.: on status of Anglo-Saxon woman, i, 263 n. 4;
on function of father or guardian in the marriage contract, 276
n. 3;
whether Anglo-Saxons married in their homes, 296, note;
on marriage at church door, 299 n. 4;
marriage celebration during the Commonwealth, i, 419 n. 2;
on irregular marriages, 435, 436, notes, 443 n. 3, 447 n. 1;
irregular royal marriage, 449 n. 3;
Henry Fox's opposition to Hardwicke Act, 450 n. 1;
clandestine marriages after Hardwicke Act, 459 n. 3;
divorce among Anglo-Saxons, ii, 34 n. 1, 39 n. 5;
number of irregular divorces in Middle Ages, 56 n. 2;
traffic in, 58 n. 3;
views or English reformers as to divorce, 72;
_Reformatio legum_, 77 n. 4;
Milton's low ideal of womanhood, 89, 91, 92;
voidable marriages, 95 n. 4.
Jerome: on Roman divorce, ii, 18, note;
indissolubility of marriage, 27;
excuses Fabiola's remarriage after divorce, 28.
Jewell _v._ Jewell, iii, 178.
Jewish law: influence of, on the Puritans, ii, 130, 131, 152 and nn.
1, 2, 162, 169, 179, 199, 200, 217, 352.
(_See_ Hebrews, Hebraism.)
Jörs, P.: cited, ii, 16 n. 4.
Johnson, Samuel: on adultery, ii, 106 and n. 3.
Joint undivided families, i, 129.
Judicial separation under present English law, ii, 114, 115.
Judith: her marriage with Æthelwulf, i, 297 n. 1.
Julian: divorce law of, ii, 31.
Junius, F. A.: on the ring, i, 278 n. 3.
_Juramentum de reconciliatione_, ii, 51 n. 2.
Jury trial in divorce suits, iii, 28, 90, 158, 159.
_Jus primae noctis_: works on, i, 38;
as evidence of promiscuity, 51 and n. 2, 52.
Jurisdiction, matrimonial, of the ecclesiastical courts: abuses of,
i, 351-59, 412-14; ii, 56-59;
rise of, in cases of divorce, 47-52.
(_See_ Canon law.)
Justin II.: on divorce, ii, 30.
Justinian: on divorce, ii, 30, 33.
Justin Martyr: on second marriage, ii, 25 n. 2.
Justice of the peace: celebrates marriage under law of 1653, i, 418;
exercises matrimonial jurisdiction under, 420, 421-24.
---- marriage solemnized by, in New England colonies, ii, 127, 128;
Rhode Island, 135 n. 1;
Connecticut, 138 n. 3;
Maryland colony, 240, 241, 242;
North Carolina colony, 251, 252, 253, 255, 256;
South Carolina colony, 261;
Georgia, 262;
New York province, 285-87, 291, 294, 307;
New Jersey colony, 309-11;
Pennsylvania, 320.
---- marriage solemnized by, in Massachusetts, ii, 389, 390;
other New England states, 391;
southern and southwestern states, 412, 414, 415, 416, 417, 418,
421, 423;
middle and western states, 454, 456, 457, 459, 460, 461, 462,
463-65;
defects in the system of magisterial celebration, iii, 189, 190.
Juvenal: on divorce, ii, 18, note.
Kabinapek Indians: pairing season of, i, 99.
Kabyles: woman's right of "insurrection" among, i, 246 n. 1;
effects of wife-purchase on divorce, 249 n. 1.
Kafirs: avoid marriage with persons living closely together, i, 128;
Herero, polyandry among, i, 135 n. 2;
polygyny among, when more women, 145;
bride-price, 193;
whether free marriage, 214, 216;
free divorce, 227 and n. 2, 240;
remarriage of woman after divorce, 215.
Kalm, Peter: on governor's license fees in New York province, ii,
297.
Kalmucks: forbidden degrees among, i, 126;
symbol of rape, 168, 169 and n. 1, 172;
exchange of gifts, 219.
Kames, Lord: quoted, i, 136 n. 3.
Kamtchadales: symbolical rape among, i, 166.
Kandhs: avoid marriage with members of the tribe, i, 128.
Kansas: marriage celebration in, ii, 464;
definition, 470;
age of consent to marriage, 472;
forbidden degrees, 473-75;
void and voidable marriages, 475-78;
marriage of epileptic and imbecile restrained, 480;
license, 488;
return, 489 and n. 3, 491;
state registration, 495:
legislative divorce, iii, 98;
judicial divorce, 127-29;
remarriage, 148;
residence, 156;
common-law marriage, 177;
age of consent to carnal knowledge, 201;
divorce rate, 210.
Karems: effects of divorce on property among, i, 248.
Karlowa, O.: on _coemptio_, i, 199 n. 5.
Karok: bride-price among, i, 192.
Karo-Karo, of Sumatra: divorce among, i, 229.
Kasaph: betrothal by, i, 197.
Kautsky, Carl: on headship of woman in the family, i, 45;
evolution of father-right and mother-right, 55;
successive forms of marriage, 56-58;
classificatory systems, 71.
Keith, Alexander: the marriage-broker, i, 443;
his _Observations_ quoted, 443, 444;
his celebrations after passage of the marriage act, 459 n. 3.
Kemble, J. M.: on the penitentials, i, 326 n. 1.
Kent, James: on divorce in New York, ii, 383;
his decision in Fenton _v._ Reed, iii, 175 and nn. 2, 3, 185.
Kentucky: celebration of marriage in, ii, 414;
unauthorized celebration, 425;
age of consent and of parental consent, 428-30;
forbidden degrees, 433, 435;
void or voidable marriages, 435 n. 3, 436, 437, 438;
miscegenation forbidden, 439;
license system, 443, 447;
license bond, 448;
return, 449;
celebrant's record, 451;
state registration, 452;
legislative divorce, iii, 41, 42;
judicial divorce, 53-55;
remarriage, 82;
residence, 85;
intervention by prosecuting attorney, 90;
rejects common-law marriage, 180;
age of consent to carnal knowledge, 200.
Kiss: at betrothal, i, 297, note, 294 n. 3.
Klein, A.: cited, i, 274 n. 1.
Kling, M.: on divorce, ii, 62.
Koch _v._ Cornelissen, ii, 281, 282.
Koehne, C.: on marriage of the unfree, i, 257, 276 n. 1.
Kohler, J.: works of, i, 3, 4;
on adoption, 26 n. 2;
headship of woman in the family, 45;
Gainaberg maiden-market, 50 n. 2, 200 and n. 1;
sequence of mother-right and father-right, 54;
forms of marriage, 55 and n. 6;
totemism in relation to group-marriage and mother-right, 73-75;
exogamy, 121 n. 3;
extent of monogamy, 142 n. 2;
wife-capture, 157 n. 3;
wife-purchase, 179, 260 n. 1;
bride-price in Ireland, 200 n. 2;
_mund_, 256, 276 n. 2.
Kovalevsky, M.: on ancestor-worship among Slavs, i, 26 n. 1;
promiscuity at Slavic festivals, 50 n. 2;
the law of Black George, and Nestor, 190 n. 1.
Krauss, F. S.: his _Sitte und Brauch_, i, 5;
cited, 242, 243 n. 6, 244 n. 2.
Krus, the African: divorce among, i, 226 n. 3.
Kuczynsky, R. R.: cited, ii, 125; iii, 243 n. 2.
Kulischer, M.: cited, i, 89;
regards wife-purchase as a universal stage, 179;
but now as very rare, 185;
on the origin of the marriage ring in wife-capture, 280 n. 3.
Kurnai: elopement among, i, 169, 170;
marriage by service, 187, 188.
Kunandaburi: form of marriage among, i, 72 n. 6.
Kwakiutl: wife-purchase among, i, 190, 191.
Lacondou Indians, i, 94 n. 1.
Laers: cases of, ii, 274, 275, 277, 377.
Lambert of Avignon: liberal views on divorce, ii, 65;
favors death for adultery, 66.
Lamprecht, Karl: on wife-capture among Germans, i, 259 n. 1;
wife-purchase, 260 n. 1.
Lanfranc: requires benediction, i, 313.
Lang, Andrew: on theories of Westermarck and McLennan, i, 132, note.
Lantsman's case, ii, 378-80.
Laud, Archbishop: puts an end to irregular marriages in the Tower,
i, 443 n. 3;
scheme of, for a bishop in the colonies, ii, 132.
Lauderdale Peerage case, ii, 300-306; iii, 173.
_Launichild_, i, 266 n. 1.
_Lavves Resolutions of Womens Rights._ characterized, i, 406, 417
n. 2.
Lecky, W. E. H.: on restricted liberty of Greek wife as to divorce,
i, 240 n. 1;
Fleet marriages, 437 n. 2, 440, 441;
freedom of divorce in Rome, ii, 17 and n. 4, 18, 19;
use of metaphor in history or the church, 52, note;
abuse of canon-law divorce jurisdiction, 57 n. 2;
on deceased wife's sister question, 98 and n. 2, 99 and n. 2,
100-102;
Maule's decision, 108, 109;
divorce law of 1857, 109 n. 3;
inadequacy of present English law, 111, 112.
Legality and validity: distinguished, i, 312, 314, 315; ii, 287;
in England after Reformation, i, 379.
_Leges Henrici_, i, 334.
Legislation: history of, as to marriage, ii, 388-497;
as to divorce, iii, 3-160;
function of, 167-223;
influence on divorce rate, 216-20.
Legislative divorce: in England. (_See_ Parliamentary divorce.)
---- in the American colonies: Massachusetts, ii, 337, 338;
discontinued after 1692, 340:
New England, 349 and n. 2;
Plymouth, 349-51;
Connecticut, 355-60;
Rhode Island, 360, 361-66;
whether in southern, 374-76;
whether in New York, 383, 384;
in Pennsylvania, 387.
---- in the states: New Hampshire, iii, 10, 11;
Connecticut, 13;
Rhode Island, 14;
southern and southwestern states, 31-50;
middle and western states, 96-101.
Lehmann, K.: on sale-marriage, i, 260 n. 1;
betrothal, 275 n. 2.
Leigh, Anne: married in the Fleet, i, 438, note.
Leist, B. W.: on maternal family, i, 20;
_rita_ and _dharma_, 24 n. 2;
Aryan housewife, 27 n. 1;
denies that Roman agnation is based on _patria potestas_, 31 n. 5;
_coemptio_, 199 n. 5;
three parts of nuptial ceremony, 272 n. 3;
appointed daughter, 217 n. 2.
Leprosy: ground of divorce in China, i, 236;
and in Hawaii, iii, 144.
Letourneau, Charles: cited, i, 92;
on the extent of female kinship, 116 n. 2;
wife-capture, 158 n. 1, 163;
symbol of rape, 160, 161, 166, 176 n. 3;
original status of woman, 210, 211 n. 1.
_Lex Burgundionum_: on divorce, ii, 36.
_Lex Grimoald._: on divorce, ii, 38 n. 2.
_Lex Julia de adulteriis_, ii, 16 and n. 3, 29.
_Lex Julia et Papia Poppaea_, ii, 16 and n. 4.
_Lex romana Burgundionum_: allows divorce by mutual consent, ii, 34.
_Lex Saxonum_: cited, i, 264 and n. 5.
_Lex Visigothorum_: on divorce, ii, 37 and n. 3.
Levirate, i, 84 and n. 2, 133, 134 n. 1.
Levitical law: prescribes death for striking parent, i, 17 n. 5;
followed in the New England colonies, ii, 152, 162.
(_See_ Hebraism.)
_Libellum_ or _libellus repudii_, ii, 35 n. 1, 47 n. 1, 48, notes.
License, marriage, in England: under Cromwell's act, i, 418;
Hardwicke Act, 458;
4 Geo. IV., c. 76, 466, 467;
present English civil law, 471.
---- in the American colonies: required by Andros, ii, 136 n. 2;
issued by governor in New Hampshire, 147;
Virginia, 229, 234;
taxed, 234;
Maryland, 239, 241, 244;
North Carolina, 251, 252, 255, 256, 258;
New York, 285, 294. 296 and n. 4;
form of license in that colony, 298;
John Rodgers's evidence, 307;
New Jersey, 313, 314;
Pennsylvania, 321 and n. 5.
---- in the states: 403-8, 446-52, 481-97.
Liebermann, F.: his text of the Anglo-Saxon laws quoted, i, 267,
268.
Lika: divorce in, i, 242, 243 n. 6.
Lingard, John: on the early rituals, i, 302, 303.
Lippert, Julius: his works, i, 33;
theory of gynocracy, 44;
on peoples having custom of temple prostitution, 51 n. 1;
stages in evolution of the family, 54, 55;
wife-capture, 157 n. 3;
the symbol of capture, 176 n. 1;
regards wife-purchase as a universal stage, 179.
Lithuania: wife-capture in, i, 159.
Liturgies: of Edward VI. and Elizabeth, i, 283, 301 n. 3;
of Durham, Sarum, and York, 284 and n. 1, 301 and n. 2, 302-8;
not adopted by early Christians, 294, 295, 308;
those published by Surtees Society, 298.
Livermore, Mary A.: on social value of coeducation, iii, 246 n. 1.
Living apart: cases of, in colonial Massachusetts, ii, 159-61.
Livonia: wife-capture in, i, 159.
Loanga: proof-marriages in, i, 49.
Locke, John: his _Two Treatises on Government_, i, 3, 16, 17.
_Lohngeld_, i, 266 n. 1.
Lombard, Peter: on marriage as one of the "seven sacraments," i,
332, 333;
his theory of the _sponsalia_, 336-39;
it was rejected at the Reformation, 373;
the "master" of the canon law, ii, 47, 52;
his special pleading on divorce, 51 n. 4;
Milton on, 52 n. 1.
Lombards: wife-purchase among, i, 265;
their _quarta_ or dower, 269.
Lodge, H. C.: quoted, ii, 241, 242.
Long, Horod: case of, ii, 361-63.
Loening, E.: on wife-purchase, i, 260 n. 1;
Roman betrothal, 292 n. 2;
canon-law betrothal, 293 n. 1.
Louisiana: marriage celebration in, ii, 418-21;
witnesses, 423;
requisites of a legal marriage, 427, 428;
age of consent and of parental consent, 428, 429;
functions of family council, 431-33;
forbidden degrees, 433, 434;
void or voidable marriages, 435 n. 3, 436, 437;
miscegenation forbidden, 439;
license system, 445, 446;
return, 449;
legislative divorce, iii, 40, 41;
judicial divorce, 68-71;
remarriage, 83, 84;
notice, 88;
arbitration of divorce suits, 90;
intervention of prosecuting attorney, 90;
alimony, property, and custody of children, 91, 92, 95;
common-law marriage, 176;
age of consent to carnal knowledge, 199.
Lourbet, J.: quoted, iii, 240.
Lovrec, Dalmatia: wedding custom in i, 220 n. 3.
Lubbock, Sir John: introduces term "communal marriage," i, 34, 47
n. 2;
cited, 36;
on expiation for marriage, 50;
nomenclatures, 72 n. 5;
symbol or rape, 119;
exogamy and wife-capture, 120;
origin of aversion to close intermarriage, 122.
Lucock, H. M.: on deceased wife's sister question, ii, 98 n. 2;
remarriage of divorced persons, 112 n. 2.
Ludlow, J. M.: on form of marriage, i, 294.
Luther, Martin: on parental consent, i, 338 and n. 4;
the _sponsalia_, 341 and n. 2;
difficulties caused by the theory of the _sponsalia_, 345, 346;
his doctrine of betrothal 371-73;
its influence in Germany, 374, 375;
drafts simple marriage ritual, 375 and n. 3;
development of his views as to nature of wedlock, 386-88;
sanctions double marriage of Philip of Hesse, 390;
admits temporary separation, ii, 61;
shapes the Protestant doctrine of divorce, 61;
leads conservative reformers, 62;
adopts broad meaning of desertion, 62, 63 and n. 1;
does not admit certain grounds of divorce, 64 n. 1;
favors death for adultery, 67;
divorce jurisdiction, 69-71;
inclined to favor concubinage rather than full divorce, 71.
Luxford's case, ii, 159, 332.
Luzon: divorce in, i, 232.
Lyndhurst's act, ii, 95, 96.
McGee, W. J.: cited, i, 37;
on subordinate wives of Sioux, 144;
denies wife-capture among them, 165 n. 4;
on the Seri, 187, 218 n. 4.
Macclesfield's case, ii, 104.
McLennan, Donald, i, 34.
McLennan, J. F.: criticises Maine, i, 15-17;
on adoption, 26 n. 2;
exogamy and _patria potestas_, 31;
his works, 34, 65 n. 4;
criticised by Morgan and others, 35, 36;
rejects theory of expiation, 50 n. 2;
phallic worship, 52;
nomenclatures, 71, 72;
his constructive theory analyzed, 77-88;
promiscuity, 77;
female infanticide, 78, 79;
totem _gens_, 79 and n. 2;
polyandry, 80-84;
wife-capture, 84, 85, 156, 157;
exogamy, 85, 117, 118;
criticises Müller on symbol of rape, 175 n. 3;
wife-capture in Australia, 182 n. 1.
Macqueen, John: on parliamentary divorce, ii, 102 n. 2, 103-6,
notes.
McCreery v. Davis, iii, 78.
Magdalen College, pontifical of, i, 311 n. 4.
Madan, M.: his book described, i, 229 n. 2.
Maddox and Grimestone: their public betrothal, i, 381, 382.
Mæcenas: divorces his wives, ii, 17 n. 4.
Magalhães, Jose Vieira de: on sexual jealousy of Brazilian natives,
i, 105;
the Cahyapós, 107, 108;
the Guatos and Chambioás, 108, 109.
Magister Vacarius: theory of, i, 337 n. 2.
Magisterial separation: in England, ii, 117.
Magistrate: as solemnizer of marriage, origin of, i, 282;
supersedes the priest at the nuptials in New England colonies, ii,
125.
Maine: celebration of marriage in, ii, 392, 393;
unauthorized celebration, 395;
age of parental consent to marriage, 396;
miscegenation forbidden, 398;
checks marriage of paupers, 400;
survival of optional system of banns or posting, 403 n. 1;
certificate and record, 404;
return, 405, 406;
collection and record of statistics, 407, 408;
divorce: jurisdiction, kinds, and causes, iii, 16-18;
remarriage, 20, 21;
residence, 24, notes, 25;
as to common-law marriage, 179;
age of consent to carnal knowledge, 198;
license five days before celebration, 191;
divorce rate, 209, 212 n. 1, 218 n. 3;
bundling, ii, 184, 185.
Maine, Sir Henry: his patriarchal theory, i, 3;
on family as unit of social development, 10;
his patriarchal family, 10-13;
Spencer's criticism of, 14, 15;
McLennan's, 15-17;
on effect of promiscuity, 102;
aversion to close intermarriage, 122, 123.
Maintenance order: in England, ii, 116, 117.
Makassars: divorce among, i, 226, 241 n. 6.
Makower, F.: his _Constitutional History_, i, 290, 312 n. 1.
Malayan system of consanguinity, i, 67, 68, 71, 72.
Manipuris: effects of divorce among, i, 248.
_Manu_: editions of, i, 5;
wife-capture mentioned in, 160;
wife-purchase, 198 and nn. 4, 5.
Manuscripts: used for Massachusetts, ii, 121;
New York, 264, 329.
Maoris: have Malayan system of consanguinity, i, 68.
Marblehead: custom of bedding the bride and groom in, ii, 140.
March, Hugh and Dorcas: case of, ii, 335, 336.
Marea: divorce among, i, 245 n. 5.
Margaret of Scotland: her matrimonial adventures, ii, 57, 58.
Marianne Islands: effects of divorce in, i, 248.
Mark, St.: on divorce, ii, 20, 21.
Marriage: genesis of, i, 7;
product of social experience, 8;
origin of, according to Bachofen, 40, 41;
communal or group, 47 and n. 2, 54, 64;
rites of, alleged to arise in sexual taboo, 54;
forms of, 55-65: among lower animals, 96;
defined, 102 and n. 1;
rise of the contract of, 152-223;
by capture, so-called, 156-63;
symbolical capture in, 163-79;
by purchase, so called, 179-201;
rise of self-betrothal or free contract, 201-9;
free marriage coexisting with purchase, 209-23. (_See_
Matriarchate, Mother-right, Family.)
---- under English, German, and canon law: old English
wife-purchase, authorities, i, 253-58;
the _beweddung_, 258-72;
the _gifta_, 272-76;
rise of free marriage, 276-86;
lay contract and ceremonial accepted by the church, 287-320;
the primitive benediction and the bride-mass, 291-308;
the chosen guardian superseded by the priest, 309;
rise of ecclesiastical marriage, 309-20;
the church develops and administers matrimonial law, authorities,
321-24;
early Christian doctrine, 324;
a sacrament, i, 325;
compromise with lust, 325, 326;
declared a sacrament by the Council of Trent, 326 n. 2;
ecclesiastical authority over, 331, 334;
two degrees of, defined by Gratian, 335;
a simple consensual compact, 336;
_sponsalia de praesenti_, 337;
_de futuro_, 338;
validity and legality, 339;
clandestine, 340-49;
impediments, 351-54;
putative, 356;
child-marriages, 357-59;
banns and registration, 359-63;
Protestant conception of, authorities, 364-70;
the forms of wedlock, according to the continental reformers,
370-75;
according to the English, 376-86;
the nature of wedlock, according to the continental reformers,
386-92;
according to the English, 392-99;
child-marriages in the age of Elizabeth, 399-403;
civil, rise of, 404;
authorities on, 404-8;
origin of, in the Netherlands, 409 and n. 2;
controversy between Cartwright and Whitgift, 410-14;
the Millenary Petition, 414 n. 3, 415;
harsh law against the Catholics, 415-17;
Cromwell's ordinance, 1653, 418-35;
laws of William III. relating to license and celebration, 435-37;
in the Fleet, 437-46;
superstitions regarding marriage, 441 n. 3;
Hardwicke Act, 448-59;
merits of, 459, 460;
defects of, 460-65;
registration law of 1836, 465, 466;
celebration under 4 George IV., c. 76, 466;
license and banns under, 466, 467;
civil-marriage act of 1836, origin of, 469;
provisions as supplemented by later statutes, 470-73;
with deceased wife's sister, ii, 96-102.
---- obligatory civil, in the New England colonies, ii, 121;
authorities, 121-24;
origin of, 125-32;
first laws authorizing, 133-35;
rise of optional civil or ecclesiastical, 135-40;
no ritual prescribed, 140;
wedding customs, 140-43;
banns, parental consent, and registration, 143-51;
courtship, proposals, and government of single persons, 152-69;
adultery punished by death, 169-71;
by the scarlet letter, 171-75;
scarlet letter for incest, 177, 178;
pre-contract or betrothal, 179-81;
bundling, 181-85;
ante-nuptial incontinence, cases of sentence and confession in
Suffolk and Middlesex counties, 186-99;
influence of Jewish law on pre-contract, 199, 200;
breach of promise suits, 200-203;
marriage portions, 203;
Samuel Sewall's matrimonial thrift, 204-9;
clandestine, 209-12;
slave, 215-26.
---- ecclesiastical, in the southern colonies, ii, 227;
authorities, 227, 228;
religious celebration in Virginia, 228-32;
dissenters marry contrary to law, 232;
local administration of matrimonial law, 232, 233;
license, 233, 234;
clandestine marriages, 235;
first wedding, 235, 236;
adultery, 236;
curious marriage agreement, 237-39;
optional civil, in Maryland colony, 239-41;
rise of obligatory ecclesiastical, for Anglicans, 241-44;
miscegenation, 244;
civil marriage abolished, 244, 245;
articles of courtship, 245-47;
struggle for free civil marriage in North Carolina, 247-59;
in South Carolina and Georgia, 260-63.
---- optional civil or ecclesiastical, in the middle colonies, ii,
264;
authorities, 264-66;
law and custom in New Netherland, 267-84;
under the Duke of York, 284-96;
in New York province, 296-308;
New Jersey, 308-15;
Pennsylvania, 315-27.
---- in the New England states: authorities, ii, 388;
solemnization, 389-95;
age of consent, 395, 396;
age of parental consent, 396, 397;
forbidden degrees, 397, 398;
void or voidable marriages, 398-401;
certificate and record, 401-8.
---- in the southern and southwestern states: solemnization, 409-27;
definition, 427, 428;
age of consent, 428, 429;
age of parental consent, 429-33;
forbidden degrees, 433-35;
void or voidable marriages, 435-38;
miscegenation forbidden, 438-40;
certificate and record, 441-52.
---- in the middle and western states: solemnization, ii, 452-65;
witnesses, 465, 466;
no fixed ceremony, 466;
contract marriage in California and other states, 467, 468;
unauthorized solemnization, 468, 469;
requisites for a legal marriage, 469, 470;
definitions, 470, 471;
age of consent and of parental consent to marriage, 471-73;
forbidden degrees, 473-75;
void and voidable marriages, 475-78;
miscegenation forbidden, 478, 479;
marriage of paupers, epileptics, and imbeciles restrained, 479,
480;
suspension of prosecution and penalty, 480, 481;
certificate and record, 481-97.
(_See_ Family, Divorce.)
---- and the family, problems of: authorities, iii, 161-67;
function of legislation, 167-70;
common-law marriage, 170-85;
resulting character of matrimonial legislation, 185-203;
resulting character of divorce legislation, 203-23;
the function of education, 223-59.
---- _ante ostium ecclesiae_, i, 299-308.
---- certificate: to wedded pair, under Cromwell's act of 1653, i,
426, 431;
in colonial Rhode Island, ii, 149, 151 and n. 1;
Pennsylvania, 321, 322 and n. 1;
at present in the various states, 450, 451, 486, 492.
---- common-law: history of, in the various states, iii, 170-85.
---- contract: rise of, i, 152-223.
---- contracts: in New Netherland, ii, 282-84.
---- form: by the Directory, i, 417;
under Cromwell's act, 419;
under present English law, 472, 473.
(_See_ Marriage, in the three groups of states.)
---- gifts: significance of, i, 218, 219.
---- license system.
(_See_ Certificate and record.)
---- license bonds: required by Andros, ii, 136 and n. 2: in
Virginia colony, 233, 234;
Maryland colony, 239, 240;
New York province, 296 and n. 4;
in Alabama in case of persons under age, 430;
Arkansas, Indian Territory, Kentucky, Mississippi, Tennessee, 408;
Delaware, 482 and n. 1, 483;
recommended as a reform in the law, iii, 191.
---- legislation: resulting character of, iii, 185-203.
---- portions: in early New England, ii, 203-9.
---- rate: lower in cities, iii, 211;
falls in hard times, 213-15.
---- records: under law of 1653, i, 424-28;
under Hardwicke Act, 458.
(_See_ Certificate and record.)
---- rituals: character of, after Reformation, i, 375.
(_See_ Rituals.)
---- superstitions and popular errors regarding, i, 441 n. 3.
---- tax, i, 435-37.
---- by capture, so called, i, 55, 56, 57, 156-79;
existing with purchase, 179-84.
---- by exchange, i, 185, 186.
---- by purchase, i, 55, 56, 57, 58;
McLenan's theory, 85;
history of, 179-201;
surviving with free contract, 210-23;
by gifts, 218, 219.
---- by service, i, 186-89.
(_See_ Family, Divorce.)
Married Women's Property Act, English, ii, 116.
Marsh, Mrs. Job: last bride stolen in Hadley, ii, 141.
Marshall, Stephen, i, 417.
Marshall, W. E.: on the Todas, i, 81-83.
Martene, E.: his _De ritibus_ cited, i, 287, 293, 295 n. 5, 297 n.
1, 300 and n. 2, 301 n. 2, 307 and n. 1, 308.
Martial: on divorce, ii, 18, note.
Martins, C. F. Ph. v.: on marriage by service in Brazil, i, 186.
Maryland, the colony: slave baptisms in, ii, 221;
optional civil marriage and rise of obligatory religious marriage,
239-47;
separate alimony, not divorce, granted, 371-74;
question of common-law marriage, iii, 172.
---- the state: celebration of marriage in, ii, 414, 415;
witnesses, 423;
marriage of freedmen, 426;
age of parental consent, 429, 430;
forbidden degrees, 433-35;
void or voidable marriages, 435 n. 3, 436, 437;
miscegenation forbidden, 439;
has dual system of banns or license, 444;
license, by whom issued, 447;
certificate to married pair, 450;
return, 449;
Quakers keep records of their marriages, 451;
legislative divorce, iii, 31-35;
judicial divorce, 55-57;
remarriage, 80;
residence, 86;
process, 89;
rejects common-law marriage, 180;
age of consent to carnal knowledge, 199.
Maskell, W.: his _Monumenta_ cited, 1, 284 n. 1, 297 n. 1, 288, 301
n. 2, 304, notes, 305 n. 2, 307, notes, 311 n. 4, 312 n. 1.
Mason, O. T.: quoted, i, 250.
Masson, D.: on Quaker marriages, ii, 316.
Massachusetts, the colony and province: county courts of, had equity
jurisdiction, ii, 125 n. 1;
influence of theocracy in, 125;
first law regarding marriage celebration, 133;
commissioners to join in marriage, 133, 134, notes;
rise of religious marriage, 138 and n. 4, 195;
treatment of single persons, 154-57;
of married persons living apart, 158-61;
laws governing courtship, 164, 165;
these laws executed by the courts, 165, 166;
scarlet letter for adultery, 174-76;
for incest, 177, 178;
pre-contract, 179;
espoused wife may be punished for adultery, 180;
bundling, 183, 184;
cases of fornication before marriage, 186 n. 3;
breach of promise suits, 200-203;
clandestine marriages, 210, 211;
forbidden degrees, 212-15;
slave marriages, 216-26;
divorce during first charter, 330-39;
during second charter, 339-48;
question of common-law marriage, iii, 173.
---- the state: solemnization of marriage in, ii, 389, 390;
unauthorized celebration, 395;
age of parental consent to marriage, 396, 397;
law forbidding miscegenation repealed, 399;
survival of optional system of banns or posting, 402;
certificate and record, 403, 404;
return, 405, 406;
collection and record of statistics, 406, 407;
jurisdiction, kinds, and causes of divorce, iii, 4-10;
remarriage, 18;
Putnam v. Putnam, 19, 20;
residence, 22, 23;
notice, 27;
alimony, 29, 30;
rejects common-law marriage, 178, 179;
age of consent to carnal knowledge, 198;
what justices may solemnize marriages, ii, 390;
iii, 190;
divorce rate, 209, 212 n. 1;
marriage rate, 215.
Maternal system of kinship: Westermarck on, i, 18;
later than paternal, according to Starcke, 18;
rejected for Indo-Germanic peoples by recent writers, 19, 20;
Dargun on, 20-23;
whether among Bomans, 32 n. 1;
Bachofen's view, 40, 41;
as evidence of promiscuity, 48;
Morgan's theory, 66;
McLennan's theory, 77-79;
the problem of, 107-17.
Mather, Cotton: cited, ii, 170, 179 n. 2.
Mather, Increase: on Vanderbosk, ii, 137 n. 3;
against marriage with sister-in-law, 213.
Matriarchate: works on, i, 37, 38;
distinguished from mother-right, 44-46;
Hellwald on, 60;
Grosse on, 60, 61.
Matthew, St.: on divorce, ii, 19, 20, 21, 24.
Maule, Justice: on injustice of the system of parliamentary divorce,
ii, 108, 109.
Mayas: marriage by service among, i, 186.
Mayfair: clandestine marriages in, i, 443.
Megapolensis, Dominie, ii, 291 n. 4, 378.
Meister _v._ Moore, iii, 178.
Mejer, O.: cited, ii, 65, notes, 171 n. 3.
Melanchthon, Philip: his liberal views on divorce, ii, 65;
favors death or exile for adultery, 66 and n. 5;
inclines to concubinage rather than allow full divorce, 71.
Melanesians: wife-capture among, i, 159;
free betrothal, 214.
Mentzer, B.: on divorce, ii, 68.
_Mercatio_: bride-price among West Goths, i, 265 n. 1.
Metellus; the Macedonian: sentiment of, regarding marriage, ii, 17.
Metrocracy, i, 44 n. 1.
Meurer, C.: on divorce jurisdiction, ii, 71 n. 1.
Mexico, ancient: only the rich in, had plurality of wives, i, 146
n. 1.
Meyrick, F.: on benediction, i, 293 n. 3, 295 n. 5, 296 n. 1, 294
n. 3;
marriage in church, 295 n. 6;
on sentiment of early theologians regarding marriage, 328, 329;
on forbidden degrees, 352, 353.
Michaelis, J. D.: on Hebrew parental authority, i, 17 n. 5.
Michigan: marriage celebration in, ii, 461, 462;
witnesses, 465;
unauthorized solemnization, 468;
definition, 471;
age of consent to marriage, 472;
forbidden degrees, 473-75;
void and voidable marriages, 475-78;
allows miscegenation, 479;
marriages of persons tainted by certain diseases restrained, 479;
license, 487, 488;
return, 489 and n. 3, 491;
marriage certificate and celebrant's record, 492;
state registration, 494;
legislative divorce, iii, 96;
judicial divorce, 120-22;
remarriage, 147, 148;
residence, 154, 155;
intervention of prosecuting attorney in divorce suits, 159;
divorce statistics, 160;
common-law marriage, 177;
age of consent to carnal knowledge, 202;
divorce rate, 210, 211.
Micronesians: punishment of adultery among, i, 106 n. 4;
free courtship, 214.
Middlesex county, Mass.: cases of pre-nuptial incontinence, with
confessions and penalties, ii, 189, 190, 193, 194.
Mielziner, M.: on Jewish marriage law, ii, 152 n. 2, 199 and n. 5;
the Jewish "Get," ii, 13 n. 4.
Migration for divorce, iii, 205, 206.
Milford _v._ Worcester, iii, 178, 179.
Mill, J. S.: on marriage rate, iii, 213, 214;
cited on individualism, 225 n. 1;
on woman's callings, 241;
effects of her subjection, 245 n. 2.
Mill, Mrs. J. S.: cited, iii, 239, note, 245, 247 n. 2.
Millenary Petition, i, 398, 414 n. 3, 415.
Milton, John: on Bucer, i, 411 n. 2;
the corruption of the ecclesiastical courts, 414 n. 1;
civil marriage, 433, 434;
_porneia_, ii, 20 n. 1;
characterizes Gratian and Peter Lombard, 52 n. 1;
rejects divorce _a mensa_, 61 n. 2;
use of allegorical method, 61 n. 3;
analysis of his views on divorce, 85-92;
his conception of wedlock realized in New England colonies, 127;
divorce by mutual consent, iii, 251.
Minahassers of Celebes: free courtship among, i, 215.
Minnesota: marriage celebration in, ii, 462, 463, 465;
witnesses, 265;
unauthorized solemnization, 468;
definition, 471;
age of consent and of parental consent to marriage, 472, 473;
forbidden degrees, 473-75;
void or voidable marriages, 475-78;
marriage of epileptic and imbecile restrained, 480;
license, 486, 487;
return, 489 and n. 3, 491;
marriage certificate, 492;
state registration, 495;
legislative divorce, iii, 97;
judicial divorce, 124, 125;
remarriage, 148;
residence, 155;
soliciting divorce business forbidden, 160;
common-law marriage, 177;
age of consent to carnal knowledge, 201.
Ministers as celebrants of marriage: defects in the present laws
regarding, iii, 186-89.
Miscegenation: forbidden in Maine and formerly in Rhode Island and
Massachusetts, ii, 398, 399;
in the southern and southwestern states, 438-40;
middle and western states, 478, 479;
law of Massachusetts colony on, 218;
of Maryland colony, 244;
North Carolina colony, 253.
Mishnah: on divorce, ii, 13 n. 4, 14.
Mississippi: marriage celebration in, ii, 417, 418;
requisites for a legal marriage, 424;
license essential to valid marriage, 425;
marriage a civil contract, 427;
age of parental consent, 429;
forbidden degrees, 433, 434;
void or voidable marriages, 435 n. 3, 436, 437;
miscegenation forbidden, 438, 440;
license system, 447;
license bond, 448;
return 449, 450;
legislative divorce, iii, 38, 39;
judicial divorce, 64-66;
remarriage, 83;
residence, 85, 86;
process, 89;
rejects common-law marriage, 180, 181;
age of consent to carnal knowledge, 200.
Missouri: marriage celebration in, ii, 417, 418;
a civil contract, 427;
age of parental consent, 429, 430;
forbidden degrees, 433;
void or voidable marriages, 435, 437;
miscegenation forbidden, 438, 440;
original triple system of banns, notice, or license, 443;
present system, 447;
certificate to married pair, 450;
return, 449, 450;
celebrant's record, 451;
legislative divorce, iii, 38;
judicial divorce, 66-68;
remarriage, 82;
residence, 87;
process, 89;
guilty wife forfeits dower, 94, 95;
common-law marriage, 176;
age of consent to carnal knowledge, 198.
Mohammedans.
(_See_ Islam, Arabs.)
Möllendorff, P. J. v.: on divorce in China, i, 236 and n. 1.
Moloch, the Carthaginian, i, 51.
Monogamic family: according to Morgan, i, 70;
among animals, 96, 97;
always the typical form, 150, 222, 223; iii, 224.
Monogamy: hetairistic, i, 56-58;
among lower animals, 96, 97;
the rule among Veddahs and American aborigines, 142, 143 and n. 1;
among Mohammedans, 142;
monogamy the typical form of sexual life, 150;
iii, 224, 225.
Montana: marriage celebration in, ii, 464;
witnesses, 465;
marriage by declaration, 467;
unauthorized solemnization, 468;
requisites for legal marriage, 469;
definition 471;
age of consent and of parental consent to marriage, 472, 473;
forbidden degrees, 473-75;
void and voidable marriages, 475-78;
license, 487, 488;
return, 489 and n. 3, 491;
marriage certificate, 492;
legislative divorce, iii, 98;
judicial divorce, 138, 139;
remarriage, 149;
residence, 156;
notice, 158;
soliciting divorce business forbidden, 160;
courts silent as to common-law marriage, 182;
age of consent to carnal knowledge, 202.
Moore, G. H.: on slavery in Massachusetts, ii, 217, 221, 222, 223,
224-26.
Morgan, H. D.: on _porneia_, ii, 20 n. 1.
Morgan, Lewis H.: his works, i, 34, 65 n. 4;
works on, 36, 76 n. 3;
his constructive theory analyzed, 65-70;
criticism of his theory, 70-76;
his _Systems of Consanguinity_, 66, 67;
his five stages in evolution of the family and marriage,
67-70;
on origin of aversion to close intermarriage, 122;
on polygyny, 150.
Morganatic or "left-hand" marriages, i, 255, 256.
Morning-gift, i, 269 and n. 2.
Morocco: divorce in, i, 241, 243 n. 3, 244 n. 2.
Morong, i, 36.
Morris, W., and Bax, E. B.: their views on the family, iii, 230,
231.
Morton, Charles: solemnizes first religious marriage in Charlestown,
ii, 138 n. 1.
Mosquito Indians: symbolical rape among, i, 166, 167.
Mother-group, of Hellwald, i, 58-60, 102 n. 1.
Mother-right: discussion of, i, 33-89;
authorities on, 33-38;
Bachofen's view, 40-43;
distinguished from gynocracy, 44-46;
definition, 44 n. 1;
according to Hellwald, 60, 61;
according to Grosse, 60-63;
relation of totemism to, 74;
the problem of, 110-17.
Moxos: divorce among, i, 239.
Mucke, J. R.: his _Horde und Familie_, i, 37, 63-65, 71;
on alleged advantages of close intermarriage, 130 n. 2.
Muirhead, J. H.: quoted, iii, 230;
on educated women and maternity, 244, 245.
Müller, Max: his _Sacred Books of the East_, i, 4, 5;
on maternal family, 20 and n. 2.
Mulford, E.: cited, iii, 225 n. 1.
_Mund_: Kohler and others on, i, 256;
its relation to betrothal, 260 and n. 1, 261.
Mundingos, the African: divorce among, i, 226 n. 3.
_Muntschatz_, or bride-price, i, 259 n. 3.
Murdoch, John: on Point Barrow natives, i, 143 n. 1, 187 n. 3, 212
n. 3;
free divorce among, 227, 228 and n. 1.
Muscovy: wife-capture in, i, 159.
Muskogees: divorce rare among, i, 247 n. 6.
Mylitta, i, 51.
Nairs: polyandry among, i, 80, 81.
Nantes, Council of: enforces doctrine of indissolubility, ii, 39.
Naquet, A.: quoted, iii, 168 n. 2; cited, 216 n. 4.
Natchez: effects of divorce among, i, 242;
divorce rare, 247 n. 6.
Natural selection: produces exogamy, i, 131;
also polyandry, 136;
and sex of offspring, 138, 139;
its relation to sexual selection, 202, 206.
Naumann, F.: on religious duty of child-bearing, iii, 255 n. 1.
Navajo: bride-price among, i, 193;
divorce, 239.
Nebraska: marriage celebration in, ii, 464;
witnesses, 265;
unauthorized solemnization, 468;
definition, 470;
age of consent and of parental consent to marriage, 472, 473;
forbidden degrees, 473-75;
void and voidable marriages, 475-78;
miscegenation forbidden, 479;
license, 488;
return, 489 and n. 3, 491;
marriage certificate, 492;
legislative divorce, iii, 97;
judicial divorce, 129;
remarriage, 148;
residence, 157;
notice, 158;
common-law marriage, 177;
age of consent to carnal knowledge, 201.
Nevada: marriage celebration in, ii, 463, 464, 465;
witnesses, 465;
definition, 471;
age of consent and of parental consent to marriage, 472, 473;
forbidden degrees, 473-75;
void and voidable marriages, 475-78;
miscegenation restrained, 479;
license, 487, 488;
return, 489 and n. 3, 491;
marriage certificate and celebrant's record, 492;
divorce, iii, 142, 143;
remarriage, 148;
residence, 157;
common-law marriage, 177;
age of consent to carnal knowledge, 202.
New Britain aborigines, i, 94 n. 1;
liberty of female choice among, 214, 215.
New Caledonia: free courtship in, i, 214.
New Guinea: wife-capture in, i, 159;
wife on credit for service, 188 n. 2;
no divorce among Papuas, 228, 229 n. 1.
New Hampshire, the province: civil marriage in, ii, 134;
scarlet letter for adultery, 172;
for incest, 178;
pre-contract, 179;
espoused wife treated as married woman, 180 n. 3;
clandestine marriages, 211 n. 4;
divorce, 348, 349.
---- the state: celebration of marriages in, ii, 391, 392;
reputed marriages, 394;
unauthorized solemnization, 395;
age of consent to marriage, 395, 396;
first cousins may not marry, 397;
former system of banns, 402;
certificate, 404;
return, 406;
collection and record of statistics, 407 and n. 6;
jurisdiction, kinds, and causes of divorce, iii, 10-13;
remarriage, 21;
residence, 23;
as to common-law marriage, 179;
age of consent to carnal knowledge, 198;
divorce rate, 210, 212 n. 1;
license five days before celebration, 191.
Newhall, J. R.: on divorce in Massachusetts colony, ii, 332.
New Haven, the colony: influence of the theocracy in, ii, 125;
obligatory civil marriage, 135;
marriage administration, 148;
treatment of single persons, 153;
regulates courtship, 164;
espoused wife may be punished for adultery, 180;
divorce, 352, 353.
New Jersey, the colony: optional civil or ecclesiastical marriage
in, ii, 308;
act of 1668, 309;
law of the twenty-four proprietors, 309-11;
act of 1682, 311;
Church of England set up, 312;
instructions of bishop of London, 312;
act of 1719, 312, 313;
attempt of clergy to force religious marriage, 314, 315;
divorce, 385.
---- the state: celebration of marriages in, ii, 455, 456;
witnesses 466;
age of parental consent to marriage, 472, 473;
forbidden degrees, 473-75;
void and voidable marriages, 475-78;
license for non-residents, 485;
return, 491;
celebrant's record 492;
state registration, 493;
divorce, iii, 105-7;
remarriage, 146;
residence, 153;
common-law marriage, 177;
license for non-residents five days before celebration, ii, 485;
iii, 192;
age of consent to carnal knowledge, 202.
New London, Conn.: wedding-feast at, ii, 142.
New Mexico: marriage celebration in, ii, 417 n. 4;
marriage a civil contract, 427;
age of consent and of parental consent, 428, 429;
void or voidable marriages, 435 n. 3, 437, 438;
favors marriage, 441;
return, 449, 450;
celebrant's record, 451;
judicial divorce, iii, 74-76;
remarriage, 82;
residence, 87;
notice, 88;
courts silent as to common-law marriage, 181;
age of consent to carnal knowledge, 200.
New Netherland: marriage laws of, influenced by those of
Guelderland, ii, 268;
civil matrimonial administration with religious celebration, 268,
269;
Stuyvesant's letter on notice of intentions, 269;
the first ordinance, 270;
half-marriage after banns, 271;
bundling, 271, 272;
form of notice on the Delaware, 273;
civil courts have jurisdiction, 273;
case of Beeck and Verleth, 274-77;
informal marriage _de praesenti_ not valid, 277;
case of Laers, 277, 278;
cases of Fabricius and Doxy, 278, 279;
adultery, 280;
breach of promise, 281, 282;
wills and contracts at second marriage, 282-84;
divorce and arbitration, 376-82.
New York, the colony: bundling in, ii, 181;
marriage law and custom in New Netherland, 267-84;
under the Duke of York, 284;
optional civil marriage, 285-87;
registration, 288;
wife-harboring punished, 288;
remarriage after long absence, 289;
case of self-marriage, 289, 290;
Avery's offenses, 290, 291;
complaints of marriages by justices, 291;
Quaker marriages, 291-94;
Dongan Act, 294-96;
law and custom in the royal province, 296-300;
question of law after 1691, 300, 301;
Lauderdale Peerage case, 301-6;
evidence of John Rodgers, 306-8;
divorce in New Netherland, 376-82;
divorce in royal province, 382-85.
---- the state: slave baptism and slave marriage, ii, 453;
solemnization, 453;
common-law marriage abolished, 454, 455;
Indian marriages, 455;
witnesses, 465;
unauthorized solemnization, 468;
definition, 471;
age of consent to marriage, 472;
forbidden degrees, 473-75;
void and voidable marriages, 475-78;
substitute for license system, 484, 485;
return, 490, 491;
marriage certificate and celebrant's record, 492;
state registration, 495-97;
divorce, iii, 101-5;
remarriage, 102, 103, 104, 145;
Van Voorhis _v._ Brintnall, 145;
Smith _v._ Woodworth, 146;
residence, 152, 153;
notice, 158 n. 3;
soliciting divorce business forbidden, 160;
common-law marriage, 175;
age of consent to carnal knowledge, 201;
divorce rate, 216, 217.
New Zealand: wife-capture in, i, 159.
---- and Tasmania: divorce rate, iii, 211, note.
Nez-Percés: runaway bride among, regarded as a prostitute, i, 184
n. 2.
Niassers of Batu: no divorce among, i, 229.
Niblack, A. P.: quoted, i, 143 n. 1.
Nicaragua aborigines: divorce rare among, i, 247 n. 6.
Nicholas, Pope: his letter to the Bulgarians on marriage in church,
i, 295 n. 6.
_Nikâh al-mot'a_ marriage, i, 227 n. 1.
Nisbet, Judge: his decision in Head _v._ Head, ii, 375, 376; iii,
46-50.
_Nisi_: the decree in England, ii, 113, 114.
(_See_ Decree _nisi_.)
Niyoga, i, 84 and n. 2, 133.
Noble, John: his edition of assistants' records, ii, 332.
Nomenclatures: as basis of so-called systems of consanguinity, i,
70-73.
Norfolk's case, ii, 104, 105.
Northampton's case, ii, 80 and n. 4, 103.
North Carolina, the colony: struggle for free civil marriage in, ii,
247;
first marriage law, 249, 250;
liberty of Quakers, 250;
vestries act, establishing ecclesiastical rites, 252;
governor's license, 252;
act of 1741, 252-54;
law of 1766, 254-59;
question or common-law marriage, iii, 172.
---- the state: celebration of marriage in, ii, 415;
requisites for a legal marriage, 424;
age of consent, 428, 429;
age of parental consent, 429;
forbidden degrees, 433, 434;
void or voidable marriages, 435 n. 3, 437, 438;
miscegenation forbidden, 439;
survival of dual system of banns and license, 443;
present license system, 447;
return, 449;
legislative divorce, iii, 36-38;
judicial divorce, 57, 58;
remarriage, 80, 81;
residence, 86, 87;
notice, 88;
trial by jury, 90;
alimony, property, and care or children, 91, 92-94;
rejects common-law marriage, 180;
age of consent to carnal knowledge, 200.
North Dakota: marriage celebration, ii, 463, 464;
witnesses, 465;
unauthorized solemnization, 468;
definition, 471;
age of consent and of parental consent to marriage, 472, 473;
forbidden degrees, 473-75;
void and voidable marriages, 475-78;
license, 488;
return, 489 and n. 3, 491;
divorce, iii, 142;
remarriage, 149;
residence, 156, 157;
courts silent as to common-law marriage, 182;
age of consent to carnal knowledge, 201.
Northwest Territory: marriage laws of, ii, 458, 459;
divorce laws, iii, 113.
"Northumbrian Priests, Law of": denies remarriage after divorce, ii,
40.
Notice to defendant in divorce suits: in New England, iii. 25-27;
southern and southwestern states, 88, 89;
middle and western states, 158.
Nugent, Mr.: on the Hardwicke Act, i, 449, 452 n. 1, 453, 454 n. 1,
455 n. 1, 458.
Nullity: decree of, equivalent to divorce under the canon law, ii,
56-59.
Oens, of Patagonia, i, 158.
Oettingen, Alexander v.: on the marriage rate, iii, 214;
restrictions on remarriage and the divorce rate, 219 n. 1;
the numerical disparity of the sexes, i, 137.
Ogle, W.: on the marriage rate, iii, 214.
Ohio: marriage celebration in, ii, 458-60;
irregular marriage, 470;
definition, 471;
age of consent and of parental consent to marriage, 472, 473;
forbidden degrees, 473-75;
void and voidable marriages, 475-78;
optional system of banns and license, 483, 484;
return, 490, note, 491;
divorce, iii, 113-15;
remarriage, 147;
residence, 155;
soliciting divorce business forbidden, 160;
divorce statistics, 160;
common-law marriage, 177;
age of consent to carnal knowledge, 202;
divorce rate, 209, 211.
Oklahoma: marriage celebration in, ii, 417, 418;
witnesses, 423;
requisites for a legal marriage, 424;
a civil contract, 427;
age of consent and of parental consent, 428, 429;
forbidden degrees, 433;
void and voidable marriages, 437, 438;
miscegenation forbidden, 439;
license system, 447;
return, 449;
divorce, iii, 72;
remarriage, 83;
residence, 87;
separate alimony, 92;
courts silent as to common-law marriage, 181;
age of consent to carnal knowledge, 199.
Olaus, Magnus: cited, i, 159.
Old bachelors: not favored in early New England, ii, 152-57.
_Old English Homilies_: cited, i, 300 n. 1.
Old maids in early New England, ii, 157, 158, 167.
Oleepa Indians: symbolical rape among, i, 167.
Omahas, i, 144 n. 3;
elopement among, i, 167, 168;
free courtship, 212 n. 4;
effects of divorce, 242 n. 1.
Opet, O.: on legal condition of early German woman, i, 257, 263 and
n. 4;
wife-capture among Germans, 258 n. 1.
Oppenheim, O. G.: cited, i, 458 n. 2, 461 n. 2, 462, 469 nn. 2, 3,
470 nn. 1, 2.
Orator: in the nuptial ceremony, i, 281, 282 n. 2, 309.
Oregon: marriage celebration in, ii, 463;
witnesses, 465;
unauthorized solemnization, 468;
definition, 470;
age of consent and of parental consent to marriage, 472, 473;
forbidden degrees, 473-75;
void and voidable marriages, 475-78;
miscegenation forbidden, 479;
license, 487;
return, 489 and n. 3, 491;
marriage certificate, 492;
legislative divorce, iii, 98;
judicial divorce, 133-35;
remarriage, 148;
residence, 156;
notice, 158;
intervention of district attorney in divorce suits, 159;
rejects common-law marriage, 181;
age of consent to carnal knowledge, 202.
Oregon Indians: wedding gifts among, i, 220, 221.
Origen, ii, 28 n. 4.
Orleans, councils of: enforce doctrine of indissolubility, ii, 39.
Ormulum: cited, i, 300 n. 1.
Otomis, i, 238 n. 1.
Owen, Hana: her marriage annulled, ii, 215.
Owen, Robert: his views as to marriage and the family, iii, 232-34.
Owen, Robert Dale: his views on marriage, iii, 234.
Pádams, i, 217, 218.
Pairing family, i, 89-151.
Pairing season among primitive men, i, 99, notes.
Palan Islanders: certainty of fatherhood among, i, 111.
Palfrey, J. G.: on slavery in New England, ii, 216.
Palmer, W.: on espousals, i, 283 n. 4.
Panches of Bogota: intermarriages among, i, 128.
Papuas of New Guinea: no divorce among, i, 228.
Paraguay aborigines: divorce rare among, i, 247 n. 6.
Paradox, the: regarding marriage, i, 325, 326, 329 n. 2.
Pardessus: on the betrothal, i, 274 n. 2.
Parental consent to courtship: regulated in early New England, ii,
161-66.
---- to marriage: not required for valid contract by the canonists,
i, 338;
demanded by the German Reformers, 371, 372 and n. 1;
required by Cromwell's Act of 1653, 418;
marriage by license void without, under Hardwicke Act, 459;
hardships caused by this provision, 463 and n. 4, 464.
---- to marriage in American colonies, ii, 143;
Plymouth, 144;
Rhode Island, 148-51;
New Netherland, 268, 269;
New York, 286, 287;
New Jersey, 309, 310, 313;
Pennsylvania, 318, 319.
---- to marriage in the states.
(_See_ Age of parental consent to marriage.)
Parish registers: local officers elected under the law of 1653, i,
418, 426;
duties of, well performed, 426-31.
Parish registers: the records kept during the Commonwealth, i,
404, 405, 426 and n. 3, 427-31.
Parliamentary divorce: in England, ii, 102-9.
(_See_ Divorce, parliamentary.)
Parsons, Chief Justice: his decision in Milford v. Worcester, iii,
178, 179, 185.
Parthians: temporary marriages among, i, 49.
Parton v. Hervey, ii, 462 n. 7; iii, 179 n. 1, 191 n. 2.
Patagonians: free marriage among, i, 212 and n. 4.
Patriarchal family: Maine's theory of, i, 409-13;
rejected as social unit by Morgan and McLennan, 65;
place of, in evolution, according to Morgan, 69, 70.
(_See_ Agnation, Patriarchal theory, _Patria potestas_.)
Patriarchal theory: works on, i, 3-7;
discussed, 7-32;
of Maine, 9-13;
criticised by Spencer, 14, 15;
by McLennan, 15-17;
rejected for Aryans by Leist, 23 and n. 3;
does not hold for Aryans, 18-28.
_Patria potestas_, i, 11 and n. 2;
alleged relation of Roman, to agnation, 12, 30-32;
Spencer's criticism of Maine's theory, 15;
McLennan's, 15-17;
among Peruvians and Mexicans, 19 n. 1;
only elements of, among early Aryans, 27, 28;
not among Hellenes, Celts, Slavonians, and Germans, 28-30;
whether among early Germans, 259 n. 4, 260 n. 1.
Paulus: on _consensus_, i, 292 n. 4;
on divorce, ii, 29.
Paulus Aemilius: puts away his wife, ii, 17 n. 4.
Paul, St.: on divorce, ii, 21, 22, 23.
Pawnees: free divorce among, i, 228 n. 2.
Peabody, F. G.: cited, iii, 225 n. 1, 227;
quoted, 229.
Peel, Sir Robert: his civil-marriage bill, i, 469 and n. 2, 470.
Penitentials: evidence of, as to divorce, ii, 44-46.
Penn, William: on Quaker marriages, ii, 316, 317.
Pennant: on Fleet marriages, i, 439, 440.
Pennsylvania, the colony: marriage law and custom in, ii, 315;
Quaker views of marriage, 315-18;
legislation, 318-20;
functions of council, 321;
forbidden degrees, 322;
courtship, 323, 324;
wedding customs, 324-27;
legislative divorce, 385-87.
---- the state: marriage celebration in, ii, 456, 457;
witnesses, 466;
age of parental consent to marriage, 473;
forbidden degrees, 473-75;
void and voidable marriages, 475-78;
encourages marriage, 481;
license system, 485, 486;
self-_gifta_, 486;
return, 489 and n. 3, 491;
marriage certificate, 492;
state registration, 495;
legislative divorce, iii, 99, 100;
judicial divorce, 107-11;
remarriage, 146;
residence, 155;
notice, 158 n. 3;
common-law marriage, 177;
age of consent to carnal knowledge, 202;
divorce rate, 217.
Persia: marriage with a sister allowed in, i, 125.
Peschel, Oscar: on headship of woman in the family, i, 45;
horror of incest, 122.
Peters, Samuel: on tarrying, ii, 183, 184.
Peulhs of Futa-Jallon: remarriage of divorced couple among, i,
247 n. 2.
Phallicism, i, 38, 51 n. 1, 54, note.
Phelps, E. S.: on evils of present marriage system, iii, 254.
Philip of Hesse: his double marriage, i, 390; ii, 75 n. 1.
Phillips, Samuel: prepares a special ritual for slave marriages, ii,
225, 226.
Pickering, Jane: abduction of, i, 422, 423.
Piedrahita: quoted, i, 128.
Pipiles: forbidden degrees among, i, 126.
Piraungaru marriage custom, i, 72 n. 6.
Pirauru marriage, i, 72 n. 6.
Plato: on the family as the social unit, i, 10 nn. 2, 3.
Ploss, H.: cited, i, 111, 139; on racial ideas of beauty, 207 n. 5.
Plyer or tout for Fleet marriages, i, 442.
Plymouth: origin of civil marriage in, ii, 128-30;
first marriage law of, 132, 133;
commissioners to join persons in marriage, 133 and n. 2;
treatment of single persons, 153, 154;
regulates courtship and proposals, 162, 163;
scarlet letter, 171, 172;
pre-contract, 179, 180, 181;
cases of fornication before marriage, 186;
breach of promise suits, 201;
divorce, 349-51;
self-marriage, iii, 173.
_Pœnitentiale Theodori_, ii, 44 and n. 3, 45, 46.
Pollock, Sir F.: on the case of Beamish _v._ Beamish, i, 319, 320.
---- and Maitland, F. W.: on early German bride-sale, i, 260 n. 1;
betrothal, 275, 276;
rise of ecclesiastical marriage, 312 n. 1;
Lanfranc's canon, 314 n. 5;
marriage as a remedy, i, 325, 326;
_sponsalia_, 343;
canon law favors marriages, 334;
_copula carnalis_, 336;
forbidden degrees, 353;
_de facto_ marriage, 354, 355;
valid marriage, 355 and n. 1, 356;
inheritance, 356 and n. 5;
age of consent to marriage, 358 and n. 4;
dower as affected by divorce, ii, 93 and n. 3;
voidable marriages, 94.
Polyandry: as evidence of promiscuity, i, 48, 103;
place of, in forms of the family, 57, 58, 60, 65;
McLennan on, 77 n. 2, 80-84, 133, 156;
problem of the origin of, 132-41;
the custom of, is comparatively rare, 133, 134;
confined to small part of population, 135;
views of Spencer, Hellwald, Smith, and Wake, 135, 136;
of Marshall, 136 n. 2;
Westermarck's theory, 136-41.
Polygyny: place of, in the forms of marriage and the family, i, 57,
58, 60, 63;
relation to wife-stealing, 87;
favors female system of kinship, 112;
problem of the origin and spread of, 141-49;
favored by the patriarchal system, 141;
not found among many barbarous peoples, 141, 142;
how restricted, 142-45;
rise of, 145-48;
not favorable to women, 148, 149.
Polynesians: have Malayan system of consanguinity, i, 68;
punishment for adultery among, 106;
divorce, 230 n. 1.
Pomeranians: wife-purchase among, i, 199 n. 8.
Popular education recognized as the proper function of local
government in early New England, ii, 126 and n. 1.
_Porneia_, ii, 20 n. 1.
Porter's case, ii, 85 and n. 2.
Porto Rico: marriage celebration in, ii, 418;
marriage a civil institution, 428;
age of consent and of parental consent, 428, 429, 431;
forbidden degrees, 433;
license system, 447, 448;
certificate to married pair, 450;
return, 449;
divorce, iii. 76;
remarriage, 84;
residence, 88;
only statutory marriage valid, 181;
age of consent to carnal knowledge, 203;
notice of marriage, 191;
ten days' notice before license, 192 n. 2.
Posada, Adolpho: his _Théories modernes_, i, 7, 38;
his use of _symbiose_, 101 n. 2.
Post, A. H.: on hasty generalizations, i, 9 n. 4;
his works, 33;
exogamy, 121 n. 3;
alleges universality of wife-stealing, 157;
and of wife-purchase, 179;
original free betrothal, 202;
assent to marriage, 208, 209;
divorce, 224, 225 and n. 2;
among Karo-Karo, 229, and the Galela and Tobelorese, 233 and n. 2;
effects of divorce, 244 n. 2;
remarriage of widow or divorced woman, 246 n. 4;
marriage ring among the Slavs, 278 n. 3.
Potter, H. C.: cited, iii, 225 n. 1.
Poulton, E. B.: on sexual selection, i, 205 n. 4.
Powell, Aaron: quoted, iii, 195-97.
Powell, J. W.: on the Wyandottes, i, 143 n. 1.
Powers, Stephen: on pairing season among California Indians, i, 99
and n. 3;
jealousy among California Indians, 104;
the Karok, 192.
Pray, Richard and Mary: separation of, ii, 363, 364 n. 1.
Pre-contracts: abolished by Hardwicke Act, i, 459;
and in South Carolina colony, ii, 261.
(_See_ Betrothal.)
Presbyterians: restricted right to celebrate wedlock in North
Carolina colony, ii, 254-59.
_Pretium_: bride-price among the West Goths, i, 265 n. 1.
_Privilegium Paulinum_, ii, 24;
historical importance of, 54, 55;
at the Reformation, 62.
_Probeehen_ or _Probenächte_.
(_See_ Proof-marriages.)
Problems of marriage and the family, iii, 161-259.
Process in divorce and matrimonial suits: origin of, after the
Reformation, ii, 68-71.
Promiscuity: works on. i, 38; Bachofen's theory, 40, 41;
examples of, not found, 47 and n. 1;
alleged survivals, 48-52;
no absolute, 58;
Morgan's theory of, 66-68, 70;
McLennan's theory, 77, 78;
the problem of, three arguments against, 90-110.
Proof-marriages, i, 49 and n. 2, 235 n. 1.
Proposals of marriage: regulated in early New England, ii, 162-66.
Prosecuting attorney: intervention of, in divorce suits in England,
ii, 113, 114;
in the states, iii, 90, 159.
Prostitution: legalized, i, 48 and n. 4, 49 n. 1;
temple, or sacred, 51, 52, 54.
Protection order: under English law, ii, 115, 116.
Protestant doctrine of marriage, i, 364-403;
of divorce, ii, 60-85.
Ptolemies: marriage with sister among, i, 125.
Pueblos, i, 129, 213.
Punaluan family, i, 68, 69.
Punjab: symbolical capture in, i, 174;
wife-purchase, 217.
Purcell _v._ Purcell, ii, 368, 369.
Putative wedlock, ii, 94.
Putnam _v._ Putnam, iii, 19.
Quadrumana: family among, i, 97 and n. 4.
Quakers: their marriages declared valid, ii, 293 n. 3;
character of their marriage celebration, 315-18;
form of celebration, 319, 322 n. 1;
enjoy their own marriage customs in Rhode Island colony, ii, 134;
North Carolina colony, 248, 250, 251, 254;
Maryland colony, 245;
persecuted in New Netherland and in New York province, 291-93;
get relief under the Dongan law, 295;
their position in New Jersey, 308-11.
Quasi-desertion, ii, 63 and n. 2.
Queen _v._ Millis, i, 316-18; iii, 178.
Queen's proctor: his intervention in divorce suits, ii, 113 and n.
5, 114.
Queesting, ii, 182 and n. 2, 271, 272.
Radcliffe, Mary Anne: on intrusion of men-traders, iii, 248.
Rāksasa: marriage form of, i, 160.
Rape or capture: symbol of, 119, 163-80.
---- and fraudulent marriage: punishment for, under the Tudors,
i, 421 n. 5;
under Cromwell, 423.
Rawas: divorce among, i, 242 n. 4.
Reade, W.: on free marriage in Africa, i, 214.
Real contract of sale, i, 258, 259 n. 2, 260 n. 1.
_Rede Boke of Darbye_, i, 298.
_Reformatio legum ecclesiasticarum_: origin of, ii, 77 and n. 4;
provisions, 78, 79;
high authority of, 79, 80;
principles of, adopted in New England, ii, 330.
Regino of Prüm, ii, 49 n. 3, 51 nn. 1, 2.
Registers, parish: origin of, in England, i, 358-63;
during the Commonwealth, 424-31;
of the Fleet, 445.
---- marriage, in the American colonies, ii, 143;
Plymouth, 144;
Massachusetts, 145, 146;
Rhode Island, 148-51;
Virginia, 232, 233;
North Carolina, 249, 251, 252;
South Carolina, 260;
New York, 288, 296 and n. 3, 297;
Pennsylvania, 323.
---- in the states.
(_See_ Certificate and record.)
_Remancipatio_, ii, 15 n. 1.
Remarriage after divorce: views of early Fathers, ii, 26-28;
allowed to innocent party by Reformers, 65;
but they differ as to the adulterer, 66, 67;
clergy of English church not compelled to solemnize, 112 and
n. 2.
---- in New England states, iii, 18-22;
southern and southwestern states, 79-84;
middle and western states, 145-52;
restrictions on, as affecting the divorce rate, 218, 219.
Rennes: marriage ritual of, i, 288, 301 n. 2.
Reno, Nev.: clandestine divorces in, iii, 150, 205.
Residence, to entitle to divorce petition: in New England, iii,
22-25;
southern and southwestern states, 84-88;
middle and western states, 152-57.
Return of marriage celebration: in New England, ii, 405, 406;
southern and southwestern states, 449, 450;
middle and western states, 489-92;
defects in the system, iii, 192, 193.
Rhode Island, the colony: civil marriage in, ii, 134;
ecclesiastical, 138;
treatment of single persons, 153;
did not punish adultery with death or scarlet letter, 172, 173;
clandestine marriages, 211, 212;
divorce statutes, 360, 361;
legislative divorce, cases of, discussed, 361-66;
question of common-law marriage, iii, 174.
---- the state: celebration of marriage in, ii, 391, 892, 394, 395;
witnesses, 394;
unauthorized celebration, 395;
age of parental consent to marriage, 396;
former law against miscegenation, 398;
void or voidable marriages, 398;
survival of optional system of banns or posting, 403 n. 1;
certificate and record, 404;
return, 405;
collection and record of statistics, 407;
jurisdiction, kinds, and causes of divorce, iii, 14, 15;
remarriage, 22;
residence, 23;
notice, 27 n. 3;
alimony, care and custody of children, 30 n. 1;
courts of, silent as to common-law marriage, 181;
age of consent to carnal knowledge, 197;
divorce rate, 209, 212 n. 1.
Richberg, J. C.: quoted, iii, 73; cited, 195.
Richard, Archbishop: his canon on clandestine marriage, i, 313, 314.
Richter, A. L. v.: on views of Reformers as to divorce, ii, 62 n. 2,
64 and n. 2. 65, notes, 68 n. 2;
influence of Roman law on Protestant theologians, 62 n. 2;
church ordinances, 67.
Ring: the betrothal and marriage, i, 278 n. 3, 279 n. 1;
280, 294 and n. 3, 306.
---- the marriage: Cartwright on, i, 410;
Whitgift's reply, 411, 412 and n. 2;
rejected by the Puritans under Cromwell, 419 and n. 1.
Rings: exchange of, i, 375 n. 3;
Swinburne on, 384, 385;
archæology of, 385 n. 2.
_Rita_ stage among Aryans, i, 24, 25.
Rituals, marriage: the two parts, i, 283, 284 and n. 1;
authorities on, 287, 288;
none adopted by early Christians, 294, 295;
on second marriage, 297 n. 1;
the English, published by Surtees Society, 298;
others, 300-308;
by the later, marriage is to be celebrated by and not before the
priest, 310 n. 1.
Rive, F.: on betrothal, i, 274 n. 2.
Rodgers, John: on the marriage law of New York province, ii, 307;
iii, 173.
Roeder, J.: on Old English wife-purchase, i, 263 n. 4;
the betrothal ceremonial, 272 n. 2;
freedom of English widow, 277 n. 5.
Rogers, Elizabeth: her divorce for free-thinking, ii, 356, 357.
Romans: works on their matrimonial institutions, i, 5, 6;
their patriarchal family, 10-13, 29-32, 69;
wife-lending among, 49;
whether wife-capture among, 160;
wife-purchase, 199 and n. 5;
symbolical rape, 171, 172;
their marriage forms accepted by the church, i, 291 n. 2;
had no fixed ceremony, 294;
divorce among, 232, ii, 3, 4, 14-19;
divorce a private transaction, 47.
Roos's case, ii, 103.
Rosenthal, E.: on adultery among early Teutons, ii, 36 n. 1;
the penitentials, 44 n. 3.
Ross, E. A.: cited, iii, 225 n. 1.
Rossbach, A.: on symbol of rape, i, 175 n. 3;
_coemptio_, 199 n. 5.
Rouen: its marriage ritual, i, 310 and n. 1.
Ruga, Sp. Carvilius: his divorce, ii, 15 n. 4.
Russians: wife-purchase among, i, 199 n. 8.
Russell, Lord John: proposes a civil-marriage law, i, 469.
Ryder, Attorney-General: on the Hardwicke Act, i, 449, 450, 451,
452.
Sack-posset: at weddings, ii, 141 and n. 5.
_Sacra_: the Roman, i, 13;
Aryan, 27.
Sacrament of marriage, i, 310, 324-26 and n. 2,
332, 333;
abandoned by Protestants, 386;
development of Luther's views on, 386-88.
Sacramental theory of marriage: rejected at the Reformation, i,
386-88;
ii, 60, 68;
in England, i, 393, 394.
_Sacramentaria_, i, 296 n. 2, 297, 298 n. 1, 302.
St. Joseph, Mich.: a "Gretna Green," iii, 192 n. 4, 253 n. 2.
Samoa: wife-capture in, i, 159;
status of divorced woman, 245.
Sandwich Islands: marriage with a sister sanctioned in, i, 125;
status of woman in, 238 n. 3.
(_See_ Hawaii.)
Sarae, the African: divorced woman must wait two months before
remarriage, i, 245 n. 5.
Sarasin, Paul and Fritz: on the Veddahs, i, 141 n. 2.
Sarum: marriage ritual of, i, 284, 297 n. 1, 301 and n. 2, 304, 306
n. 2, 307, notes, 311 n. 4.
Satirists, the Roman: on divorce, ii, 18 n. 1.
Saunders, W. L.: quoted, ii, 256, 258, 259.
Savoy: clandestine marriages at, i, 459 n. 3.
Sayce, A. H.: on the Babylonian family, i, 221 n. 3.
Sayer, Joseph: his _Vindication_ cited, i, 459 n. 1.
Scandinavians: wife-capture among, i, 159.
"Scarlet Letter": for adultery, ii, 171-76;
for incest, 177, 178, 214 n. 2;
long survival of, in Connecticut, Massachusetts, and New
Hampshire, 398.
Schaffle, G. T.: cited, i, 98 n. 3.
Schaets, Anneke: case of, ii, 381, 382.
Scheurl, Adolf v.: on Sohm's theory of betrothal, i, 275 n. 2;
works of, 290;
_consensus_, 292 n. 3;
canon-law betrothal, 293 n. 1;
rise of ecclesiastical marriage, 310 n. 1;
_sponsalia_, 340 n. 1;
magisterial intervention as mark of Reformation, ii, 90 n. 1.
Schmid, Reinhold: on foster-laen, i, 270 n. 1;
date of betrothal ritual, 270 n. 1.
Schmidt, Karl: on _jus primae noctis_, i, 51 n. 2.
Schneider, Wilhelm: cited, i, 36.
Schneidewin, J.: on divorce, ii, 62.
Schopenhauer, A.: on woman's mental capacity, iii, 240 n. 1.
Schrader, O.: on the maternal family, i, 20.
Schreiner, Olive: on sex-parasitism, iii, 247 n. 1.
Schroeder, Richard: on _Muntschatz_, i, 259 n. 3;
bride-purchase, 260 n. 1;
Tacitus's account of betrothal, 262 n. 2;
denies traces of wife-purchase in northern law, 265 n. 3;
on violation of _mund_, 265 n. 4;
_arrha_, 266 n. 2;
foster-laen, 270 n. 1;
the Old English betrothal ritual, 271 n. 2.
Schubert, H. v.: on Sohm's theory of betrothal, i, 275 n. 2;
cited, 290;
_consensus_, 292 n. 3;
canon-law betrothal, 293 n. 1.
Scudmore: on secret marriage, i, 350.
Schulenburg, Emil: on wife-capture among the Germans, i, 258 n. 1.
Schulte, J. F. v.: on canon-law betrothal, i, 293 n. 1.
Schurman, J. G.: cited, i, 38, 88 n. 4.
Scotland: present marriage law of, i, 473 n. 2.
Second marriage: among low races, i, 246 and nn. 4, 5;
among early Germans, 273 n. 1, 277, notes;
benediction omitted by the ancient church, 297 n. 1;
the early Fathers on, ii, 24-26;
councils on, 39, 40;
synods of Verberie and Compiègne on, 42-44;
the penitentials on, 44-46.
Secondary wives, i, 143, 144, notes.
Seger _v._ Slingerland: concerning bundling, ii, 272.
Sehling, E.: on wife-capture among Germans, i, 258 n. 1;
wife-purchase, 260 n. 1;
betrothal, 275 n. 2;
_consensus_, 292 n. 3;
canon-law betrothal, 293 n. 1.
Selden, J.: on the benediction, i, 293 n. 3, 294, 297 n. 1;
dower at church door, 300 n. 1.
Self-betrothal, i, 201-23: and self-_gifta_, 276-86;
still exists in Eastern church.
(See Self-_gifta_.)
Self-_beweddung_.
(_See_ Self-betrothal, Self-_gifta_.)
Self-_gifta_: in New England colonies, ii, 209-12;
in Pennsylvania, ii, 486.
(_See_ Self-betrothal.)
Semites: marriage institutions of, i, 17;
patriarchal family, 69, 70;
wife-capture, 161, 162;
wife-purchase, 195-97.
(_See_ Hebrews.)
Seneca: denounces free divorce, ii, 18.
Separate alimony without divorce: in Virginia, Florida, Georgia,
and Oklahoma, iii, 92;
Indiana, 118;
Iowa, 127;
Ohio, 114, 115;
Montana, 138;
Utah, 133;
Wisconsin, 124;
Wyoming, 131;
the southern, colonies, ii, 368-74.
Separation from bed and board: whether according to scriptural
teaching, ii, 21, 22;
origin of the distinction, 52, 53 n. 1;
rejected at Reformation, 61;
by English Reformers, 73;
not recognized by the _Reformatio legum_, 78;
judicial separation equivalent to, under present English law, 114,
115.
---- in the American colonies: not favored by the New England
Puritans, ii, 330;
not granted in early Massachusetts, 331, 339 and n. 3;
but in that colony granted in the eighteenth century, 345;
rejected in Connecticut, 353;
and practically in Rhode Island, 363;
granted in New Netherland, 377, 378.
---- in the states: Alabama, iii, 64;
Arkansas, 71, 72;
Delaware, 113;
District of Columbia, 79;
Georgia, 62;
Hawaii, 144;
Indiana, 118;
Indian Territory, 71, 72;
Kentucky, 55;
Louisiana, 70;
Maryland, 56;
Michigan, 122;
Minnesota, 125;
Nebraska, 129;
New Jersey, 107;
New York, 105;
North Carolina, 58;
Pennsylvania, 110;
Rhode Island, 15;
Tennessee, 61;
Vermont, 16;
Virginia, 51;
West Virginia, 52, 53;
Wisconsin, 123, 124.
Separation order: the English, ii, 117.
Seranglao and Gorong: divorce in, i, 241 n. 6.
Seri: marriage by service among, i, 187 and n. 3;
meaning of their probational marriage, 218 n. 4.
Servia: wife-capture in, i, 159, 160;
bride-price, 190 n. 1.
Seven months' rule: in New England churches, ii, 196 and n. 2, 197,
198 n. 2.
Sewall, Samuel: importance of his writings for the history of social
customs, ii, 133 n. 1;
on marriages celebrated by Vanderbosk, 137;
by justices and ministers, 138 n. 4;
"bedded" at second marriage, 140;
wedding celebrations, 142, 143;
would keep house with Widow Denison, 157 n. 2;
provides his daughters with wooers, 167-69;
with dowries, 203, 204;
his marriages and thrifty courtships, 204-9;
on marriage of first cousins, 213 n. 2;
law against incestuous unions, 213 n. 7;
Hana Owen's marriage, 215;
miscegenation, 218;
slave baptism, 222, 223;
slave marriages, his _Selling of Joseph_, 223, 224.
Sewell, William: quoted, ii, 293 n. 3;
on Quaker marriages, 317.
Sexes: differentiation of, i, 93, 94;
numerical disparity of, 136, 137;
causes which determine, 138 and n. 1;
influence of disparity of, on rise of polyandry, 138-41.
Sex-parasitism, iii, 247 n. 1.
Sexual selection: woman's function in, i, 202;
secondary sexual characters in, 203-6;
and the economic dependence of woman, iii, 249 n. 1.
Shame: origin of, i, 206 n. 2.
Shammai: school of, ii, 13 n. 2.
Shans: divorce among, i, 239.
Sharon _v._ Sharon, ii, 467 and n. 1;
iii, 158 n. 1.
Shastikas: bride-price among, i, 190, 191.
Shekiani: easy divorce among, i, 226.
Shirley, J. M.: on pre-contract, ii, 180;
bundling, 185 n. 2.
Sia: alleged communism of, i, 108 n. 2.
Siamese: four classes of wives among, i, 144 n. 5.
Siegel, H.: on wife-capture among Germans, i, 258 n. 1;
wife-purchase, 260 n. 1;
exchange of rings, 281 n. 1.
Simcox, Edith: on family life of Babylonians and Egyptians, i, 221
n. 1.
Similarity: biological law of, i, 130, 131.
Single persons: laws regarding, ii, 152-58.
Sioux: position of woman among, i, 45;
plurality of wives, 143 n. 1, 144;
symbolical capture, 165, 168;
custom of avoidance, 187 n. 2;
divorce, 239.
Sioux Falls, S.D.: alleged divorce colony of, iii, 205 and n. 3.
_Sippe_, or clan-group, i, 259.
Siricius: on the benediction, i, 296 n. 1.
Slave marriages: among early Germans, i, 257, 276 n. 1;
in New England, ii, 216-26.
Slaves: status of, in New England colonies, ii, 215, 216;
the problem of baptizing, 220-23;
marriages of, 216-26.
Slavs: works on matrimonial institutions of, i, 5;
house communities among, 30 n. 1, 129;
conspicuous for wife-capture, i, 160;
symbol of rape, 174;
wife-purchase, 199 and n. 8.
Smith, Henry: his _Preparation to Marriage_, ii, 73.
Smith, Mary Roberts: cited, iii, 167, 244 n. 2.
Smith, Robertson: on Arabian marriage customs, i, 17 and n. 3;
polyandry, 135;
wife-capture among Arabs, 161;
Arabian divorce, 246 n. 1.
Smith _v._ Woodworth, iii, 146.
Smock marriages, i, 441 n. 3;
in New England, ii, 141.
Snyder, W. L.: on uniform divorce law, iii, 222 n. 3.
Socialists: views as to monogamic family, iii, 229;
theory of Engels, 229, 230;
of Carpenter, 230;
of Morris and Bax, 230, 231;
of Gronlund, 231, 232;
of Robert Owen, 232-34;
of Robert Dale Owen, 234;
of Bebel, 234, 235;
results of socialist thought, 235.
Sohm, Rudolph: on real-contract, i, 259 n. 1;
_Witthum_ as price of _mund_, 260 n. 1;
fixed-price of _mund_, 265 n. 4;
_arrha_, 266 n. 2;
evolution of _beweddung_, 266-72, 276-86;
foster-laen, 270 n. 1;
the old English betrothal ritual, 271 n. 2;
time of _gifta_, 272 n. 1;
derivation of _Gemahl_, 273 n. 1;
his theory of betrothal, 273-76;
self-betrothal and self-_gifta_, 276-86;
chosen guardian and _Fürsprecher_, 281, 282;
his works mentioned 288-90;
_consensus_, 292 n. 3;
origin of canon-law betrothal, 293 n. 1;
benediction at nuptials, 296 n. 1;
validity of unblessed marriages, 297;
function of priest in the old English ritual, 302;
the rise of ecclesiastical marriage, 309, 310 and n. 1;
the decree of the Council of Trent, 316 n. 1;
_sponsalia_, 337, note, 340 n. 1;
rise of spiritual jurisdiction, ii, 50 n. 1.
Soissons, Synod of: on divorce, ii, 41, 42.
Solemnization of marriage: in the New England states, ii, 389-95;
southern and southwestern states, 409-27;
middle and western states, 452-70;
defects of the present dual system, iii, 186-90;
reforms needed, 193, 194.
Somali: divorce among, i, 241.
_Sonderfamilie_: of Grosse, i, 61.
Sophia: on woman's equality with man, iii, 237.
Soulimana: divorce in, i, 226 n. 3.
South Carolina, the colony: slave baptism in, ii, 221;
marriage, 260, 261;
optional civil or religious ceremony in back country, 261;
question of divorce, 375;
common-law marriage, iii, 172.
---- the state: marriage celebration in, ii, 416 and n. 2;
pre-contracts, 425, 426;
marriages of freedmen, 426;
age of parental consent, 429, 430;
forbidden degrees, 433, 435;
void or voidable marriages, 435 n. 3, 437, 438;
miscegenation forbidden, 439;
legislative divorce, iii, 38;
judicial divorce, 76, 77;
common-law marriage, 176;
age of consent to carnal knowledge, 200.
South Dakota: marriage celebration in, ii, 464;
witnesses, 465;
marriage by declaration, 467;
requisites for legal marriage, 469;
definition, 471;
age of consent and of parental consent to marriage, 472, 473;
forbidden degrees, 473-75;
void and voidable marriages, 475-78;
license, 488;
return, 489 and n. 3, 490, 491;
marriage certificate and celebrant's record, 492;
divorce, iii, 142;
remarriage, 149;
residence, 157;
courts silent as to common-law marriage, 182;
age of consent to carnal knowledge, 202.
South Slavonians: wife-capture among, i, 159;
divorce, 242, 244 n. 2.
Space-relationships, of Mucke, i, 63-65, 71.
Spartans: wife-lending among, i, 49;
symbol of capture, 171.
Souza, G. S. de: on sexual jealousy among Brazilian natives, i, 105,
106;
polygyny of Tupinambás, 144.
Spencer, Baldwin, and Gillen, F. J.: their _Native Tribes_, i, 35;
on evidences of former promiscuity in Australia, 53 and n. 3;
their view rejected by Crawley, 54;
on class systems, 75, 76;
methods of getting wives in Australia, 170, note;
wife-capture, 181, 182.
Spencer, Herbert: his criticism of Maine's patriarchal theory, i,
14, 15;
of McLennan, 35, 86, 87;
on female kinship, 111;
wife-capture and exogamy, 117-20;
origin of forbidden degrees, 122;
secondary wives, 144 n. 5;
polygyny, 146-48;
wife-purchase, 179, 180;
on significance of marriage by service, 188, 189, 212 n. 1;
original status of woman, 210 and n. 4;
it was relatively high among American aborigines, 213 n. 5;
woman's mental capacity, iii, 240.
Spirgatis, E.: on the betrothal, i, 275 n. 2.
Spiritual affinity, i, 353 n. 5.
Spiritual jurisdiction: evils of, i, 351-59;
rise of, after Reformation, 392.
(_See_ Canon law, Jurisdiction.)
_Sponsalia per verba de praesenti vel futuro_, i, 305, 315, 316;
literature of, 322;
classification, 336-38, 340;
Luther quoted on, 341-43;
law decisions, 443, 444;
mentioned, 351 n. 3;
in England, 376-80.
Stara Pazva: effects of divorce in, i, 243 n. 6.
Starcke, C. N.: on paternal system of kinship, i, 18;
Bachofen, 39 n. 2;
status of African women, 46;
juridical fatherhood, 53 n. 2;
nomenclatures, 72;
criticises McLennan, 87, 88;
rejects theory of uniform primitive state, 91;
origin of the family among lower animals, 92;
the sexual instinct, 100, 101, notes;
origin of system of female kinship, 113, 114;
symbols of wife-capture, 119;
origin of exogamy, 123-25;
polygyny, 146 n. 2;
ceremonial capture, 176;
value of female labor in early marriage, 211 n. 4.
Statistics: divorce, iii, 209-19.
Stead, W. T. exposes traffic in young girls, iii, 195, 196.
Stiel, Dr.: enforces his betrothal, i, 373 n. 1.
Stetson, Charlotte Perkins: on socialization of female sex, iii,
247;
sexual selection and economic subjection, 249 n. 1.
Stiles, H. R.: on bundling, ii, 181, 183, notes, 184 nn. 1, 2, 4,
185 and n. 1;
quoted, 282.
Stoddart, Sir John: on divorce, 1550-1602, ii, 79 n. 5.
Stölzel, A.: on self-divorce and origin of process after
Reformation, ii, 69, 70;
origin of consistorial courts, 70 n. 4, 71 n. 1.
Strabo: on sacred prostitution in Armenia, i, 51 n. 1.
Strahan, S. A. K.: cited, iii, 240 n. 4;
on evil effects of early marriages, 243, 244.
Streitwolf _v._ Streitwolf, iii, 207.
Strong, Justice: his opinion in Meister _v._ Moore, iii, 178.
Stuyvesant, Peter: his letter on publication of marriage, ii, 269,
270.
_Subarrare_: in ritual of Greek church, i, 266 n. 1.
Suffolk county, Mass.: cases of pre-nuptial incontinence, with
penalties and confessions, ii, 188, 192, 196.
Sumner, Charles: on slavery in Massachusetts, ii, 216.
Sumatra: abduction and purchase in, i, 183, 215;
wives by exchange, 185;
betrothals, 209 and n. 6;
divorce among Karo-Karo, 229.
Superintendent registrar: celebration by his certificate, i, 470,
471.
Surtees Society: _Publications_ of, cited, i, 284 n. 1, 288, 297
n. 1, 298, 303-8, 311 n. 1.
Sutro Library; seventeenth-century pamphlets in, i, 418 n. 2, 432
n. 1.
Sutton, Dan: his tongue bored with hot iron for bigamy and perjury,
ii, 286 n. 1.
Swabian marriage ritual of twelfth century, i, 253, 284, 285.
Sweden: divorce rate of, iii, 212.
Swendsen, Haagen: case of, i, 447.
Swinburne, Henry: on the marriage ring, i, 297, note;
_Sponsalia_, 341-43;
pre-contracts, 377, 378;
spousals, 378, 379;
evils of secret spousals, 379, 380;
public spousals, 380;
form of betrothal and the ring, 383-85.
Switzerland: divorce rate of, iii, 211, note;
how the rate is affected by the uniform law, 222 n. 2.
Symbiose, i, 101 n. 2.
Symson, Peter, the Fleet parson, i, 438 n. 2.
Sympathy: has widened the sphere of sexual relations, i, 132.
Syndiasmian family, i, 69, 70.
Tables; statistical: of cases of ante-nuptial fornication, with
penalties and confessions, ii, 188-96;
of Massachusetts divorces in seventeenth century, 333;
and in eighteenth century, 341-44.
Taboo, sexual: Crawley's theory of, i, 54, 131, note.
Tacitus: his description of a German betrothal, i, 262 and nn. 1, 2,
285 n. 4;
on second marriages, 273 n. 1, 277.
Tahiti, i, 245 n. 2.
Talmud: on divorce, i, 240 n. 4; ii, 13.
Tamils, i, 69.
Tancred: the decretalist, ii, 51 and n. 3.
Tarrying, ii, 183 and n. 5, 184.
Tartars: wife-capture among, i, 159;
wife-purchase, 194, 195.
Tasmanians, i, 99: wife-capture in, 159;
elopement, 169;
divorce, 232 and n. 5.
Tatooing, i, 206 n. 2.
Tegg, W.: on the marriage ring, i, 279, note.
Tennessee: celebration of marriage in, ii, 415, 416;
essentials for a legal marriage, 424, 425;
marriages of freedmen, 426;
license to persons under sixteen without parental consent
forbidden, 430, 431;
forbidden degrees, 433-35;
void or voidable marriages, 437, 438 n. 3;
miscegenation forbidden, 438;
survival of dual system of banns or license, 443;
present license system, 447;
license bond, 448;
judicial divorce, iii, 58-61;
remarriage, 82;
residence, 86;
process, 88;
guilty wife forfeits dower, 95;
favors common-law marriage, 176;
age of consent to carnal knowledge, 199.
Tertullian: on the betrothal kiss, i, 279, note;
parental consent, 292 n. 4;
form of marriage, 294;
heathen forms of espousal, 295;
divorce, ii, 24;
second marriage, 25 and n. 2.
Texas: marriage celebration in, ii, 421-23;
marriages of freedman, 426;
age of consent and of parental consent, 429;
forbidden degrees, 433, 435;
void or voidable marriages, 437, 438;
miscegenation forbidden, 438, 439;
license system, 447;
return, 449;
judicial divorce, iii, 71;
remarriage, 82;
residence, 87;
trial by jury, 90;
common-law marriage, 176, 177;
age of consent to carnal knowledge, 199.
Themis, i, 24.
Theocracy of Massachusetts and New Haven: sway of, tends to separate
church and state, ii, 125.
Theodore of Tarsus: his rules for marriage celebration, i, 313;
regulates marriage and divorce, 333, 334.
Theodosian code: on betrothal with the kiss, i, 424 and n. 2.
Theodosius II.: his divorce law, ii, 31, 32.
Thlinkets, i, 143 n. 1, 213 n. 5.
Thompson, Hannah: on New York wedding customs, ii, 299.
Thompson and Geddes: on sexual selection, i, 205 n. 4.
Thornback, ii, 158.
Thorpe, B.: on foster-laen, i, 270 n. 1;
date of the old English betrothal ritual, 271 n. 1.
Thracians: wife-purchase among, i, 199.
Thwaites, R. G.: on the Winnebagoes, i, 235 n. 1.
Thwing, C. F.: on abuse of divorce jurisdiction under canon law,
ii, 57;
Margaret Tudor's divorces and marriages, 58 n. 2.
Tibet: prostitution in, i, 49 n. 1;
polyandry, 81, 83, 140;
inbreeding, 140;
but one husband usually at home, 103 n. 4.
Tillier, L.: cited, i, 37.
Tilly, Widow: marries Sewall, ii, 206, 207.
Timor: betrothals in, i, 209.
Timorlaut, i, 210.
Titsingh: cited, i, 154.
Tocqueville; A. de: on marriage in America, iii, 252.
Todas: proof-marriages among, i, 49 n. 2;
polyandry, 81-83, 140, 141;
marriage with half-sister, 125 n. 5;
numerical disparity of sexes, 137;
inbreeding, 140;
exchange of dowers, 219.
_Toleramus_: the permission to rewed after divorce, ii, 65 n. 6.
Tonga: husband's sole right of divorce in, i, 231.
Totem _gens_, i, 79.
Totemism: Kohler on, i, 73-75;
McLennan on, 79 and n. 2.
Tower: clandestine marriages in, i, 443.
Town magistrate: grants divorces in Rhode Island colony, ii, 361,
364.
Townshend, Charles: on the Hardwicke Act, i, 449, 451 n. 2, 452,
453, 455 n. 3, 456, 457.
Trent, Council of: declares marriage a sacrament, i. 326 n. 2, 329
n. 1, 333;
against secret marriage, 339;
decree of, 346 n. 2;
on publicity, 359, 360;
its decree not accepted in England, 376;
makes no essential change in the canon law of divorce, ii, 59, 60.
_Treugelöbniss_, i, 268.
Trumbull, B.: on divorces in Connecticut, ii, 358 n. 4.
Tryon, Governor: on the North Carolina marriage laws, ii, 256-59.
Tscheng-Ki-Tong: on divorce in China, i, 236 n. 4.
Tscherkese: betrothals among, i, 209.
Tualcha mura custom, i, 181 n. 3.
Tudor, Margaret: her matrimonial adventures, ii, 57, 58, notes.
Tupinambás, i, 105, 106, 144.
Turanian system of consanguinity, i, 68, 69.
Turner, L. M.: on the Innuit, i, 126 n. 1. 143 n. 1;
natives of Ungava District, 165 and n. 2.
Turner, Paul: on Nestor and on the law of Black George, i, 190 n. 1;
denies wife-purchase among the Slavs, 199 n. 8.
Tutelage of women among the Germans, i, 259 and n. 4;
weakened in the evolution of free marriage, 276-86.
Tyburn: clandestine marriages in, i, 443.
Tylor, E. B.: his _On a Method_, i, 6, 8 n. 2;
his _Matriarchal Family_, 37;
on headship of woman in the family, 45;
exogamy and the class-systems, 72 n. 5, 129;
_Couvade_, 112 n. 4;
exogamy, 121 and n. 3.
Tyndale, W.: on marriage of priests, i, 388 n. 4;
nature of matrimony, 393;
his casuistry regarding desertion, ii, 74.
Uaupés: intermarry with persons of other tribes, i, 128.
Uganda: bride-price in, i, 194.
Ulpian: on _consensus_, i, 292 n. 4.
Unfree: marriage of, i, 257, 276 n. 1.
(_See_ Slave marriages.)
Ungava District, i, 105, 165 and n. 2.
Unger, J.: his _Ehe_ characterized, i, 33;
his theory of gynocracy, 44;
on the bridal ring, 280 n. 3.
Uniform social progress: theories of, i, 8, 9.
Unitarian marriage bill, i, 461, 462.
Unyoros: divorce by symbolical act among, i, 241;
remarriage of divorced couple, 247 n. 2.
Urabunna: their form of marriage, i, 72 n. 6.
_Urfamilie_, of Hellwald, i, 58, 59.
Usher _v._ Troop (Throop), ii, 151 n. 3.
_Usus_, marriage by: how dissolved, ii, 15 n. 1;
weakened by _senatus consultum_, 15 n. 2.
Utah: marriage celebration in, ii, 464;
unauthorized solemnization, 468;
age of consent and of parental consent to marriage, 472, 473;
forbidden degrees, 473-75;
void and voidable marriages, 475-78;
miscegenation forbidden, 479;
polygamous marriages regulated, 476, 477;
license, 487, 488;
return, 489 and n. 3, 491;
divorce, iii, 131-33;
remarriage, 148;
residence, 156;
notice, 158;
rejects common-law marriage, 181;
age of consent to carnal knowledge, 201;
divorce rate, 218 n. 3.
Vaîgneur _v._ Kirk, ii, 263, note, 416 n. 2;
iii, 77, 176 n. 1.
Valentine: on bundling, ii, 271, 272.
Vanderbosk, L.: solemnizes marriages in Boston, ii, 137 and n. 3.
Vannes, Council of: allows remarriage after divorce, ii, 39.
Van Voorhis _v._ Brintnall, iii, 145.
Veddahs, the Dravidian of Ceylon: monogamy among, i, 142 and n. 2;
no wife-purchase, 218;
no divorce, 228;
love checks divorce, 248.
Veil, the bridal, i, 295 and n. 3.
Vein to the heart, i, 306 and n. 2.
Venus, the Italian, i, 51.
Verberie, Synod of: on divorce, ii, 42-44.
Vermont: celebration of marriages in, ii, 393;
unauthorized celebration, 395;
age of parental consent to marriage, 396;
checks marriage of paupers, 400 and n. 7;
survival of optional system of banns or posting, 403 n. 1;
certificate and record, 404;
return, 405, 406;
collection and record of statistics, 408;
jurisdiction, kinds, and causes of divorce, iii, 15, 16;
remarriage, 21;
residence, 23, 24;
notice, 26, 27;
alimony, 29, 30;
rejects common-law marriage, 179;
age of consent to carnal knowledge, 198;
divorce rate, 209, 212 n. 1.
Vignoli, Tito: quoted, i, 99, 100.
Virginia, the colony: slave baptism in, ii, 221;
ecclesiastical marriage and lay administration, 228-34;
license, 234;
secret marriages, 235;
first wedding, 235, 236;
fornication, courtship, 236, 237;
marriage agreement, 237-39;
separate alimony, not divorce, granted, 368-71;
question of common-law marriage, iii, 171, 172.
---- the state: solemnization of marriage in, ii, 409-13;
unauthorized celebration, 425;
marriages of freedmen, 426;
age of consent and of parental consent, 428-30;
forbidden degrees, 433, 435;
void or voidable marriages, 435 n. 3, 436, 437, 438;
miscegenation forbidden, 439;
optional system of banns or license, 442, 443;
license, by whom issued, 446, 447;
return, 449, 450;
state registration, 452;
legislative divorce, iii, 35, 36;
judicial divorce, 50-52;
remarriage, 79, 80;
residence, 84, 85;
process, 89;
alimony, 90, 92, 93;
courts silent as to common-law marriage, 181, 182;
age of consent to carnal knowledge, 200.
Void or voidable marriages: in England, ii, 92-102;
New England, 397-401;
southern and southwestern states, 435-41;
middle and western states, 475-79;
reform needed, iii, 194.
Wadium, i, 268.
Waitz, Georg: on _mund_, i, 260 n. 1.
Waitz, Theodor: on adultery among Micronesians, i, 106 and n. 4;
incest among New England Indians, 126 n. 1.
Wake, C. S.: on polyandry, i, 135;
subordinate wives, 144 n. 5;
causes of polygyny, 136 n. 3, 146 n. 6, 148 n. 3;
wife-purchase, 216 n. 2.
Wales: _trevs_ or clan-households in, i, 129;
symbolical capture, 173.
Wallace, A. R.: on sexual selection, i, 204, 205.
Walpole, Horace: quoted, i, 448 n. 3;
on the Hardwicke Act, 449 n. 2, 457.
Walter, Archbishop: his canon against clandestine marriages, i, 314;
enforcement of banns, 360.
Walter, F.: on marriage, i, 265 nn. 1, 2;
nuptial ceremonies, 285 n. 4;
canon-law betrothal, 293 n. 1.
Wanton, William: marriage of, ii, 134 n. 5.
Ward, L. F.: cited, iii, 240 n. 4;
on woman's sexual subjection, 241, 242;
influence of higher ideal of love on marriage, 245 n. 1.
Washington: marriage celebration in, ii, 463, 464;
witnesses, 265;
unauthorized solemnization, 468;
definition, 470;
age of consent and of parental consent to marriage, 471-73;
forbidden degrees, 473-75;
void and voidable marriages, 475-78;
license, 488;
return, 489 and n. 3, 491;
marriage certificate, 492;
legislative divorce, iii, 98, 99;
judicial divorce, 135, 136;
remarriage, 148;
Willey _v._ Willey, 151;
residence, 156;
notice, 158;
intervention of prosecuting attorney, 159;
soliciting divorce business forbidden, 160;
rejects common-law marriage, 181;
age of consent to carnal knowledge, 201.
Watch-an-dies, Australian, i, 99.
Waters, R. E.: on parish records during the Commonwealth, i, 426;
marriage of Frances Cromwell, 429-31.
Wazaramo, African: their divorce by symbolical act, i, 240, 241.
Weeden, W. B.: on civil-marriage contract, ii, 132 n. 4;
quoted, 152, 153;
cited, 157 n. 2;
status of slaves in New England colonies, 215.
Weeks, S. B.: quoted, ii, 252, 254, 256 n. 1, 257, 259 n. 2.
Weinhold, Karl: cited, i, 258 n. 2;
on early German nuptials, 272 nn. 2, 4;
marriage of widows, 273 n. 1;
adultery among early Teutons, ii, 36 n. 1.
_Weotuma_, or bride-price, i, 259 and n. 3;
whether price of the _mund_, 260 and n. 1;
other terms for, 262, 263;
as provision for widow, 266, 267;
when paid, 273.
_Wergeld_: its relation to _mund_, i, 265.
West-Cambridge _v._ Lexington, iii, 18 and n. 1.
Westermarck, Edward: his use of "human marriage," i, 7, note;
accents psychological causes, 9 n. 3;
on peoples with descent in male line, 18;
paternal power among Greeks, Germans, and Celts, 28 n. 2;
use of term "matriarchate," 44 n. 1;
evidence of alleged promiscuity, 47, 48;
nomenclatures, 72;
origin of the family among lower animals, 92, 98, 99;
sexual instinct, 101;
defines marriage, 102;
female kinship, 111-13;
"beena" marriage, 115;
incest, forbidden degrees, and exogamy, 125-32;
origin of polyandry, 136-41;
causes determining sex of offspring, 138, 139;
methods of wife-purchase, 185;
marriage by service, 186 n. 3;
primitive liberty of sexual choice, 202;
sexual attraction, 203-7;
standards of beauty, 207 n. 5;
on the Padams, 217, 218;
wooing gifts, 221;
effects of property on divorce, 248;
conservative influence of wife-purchase, 249 n. 1.
West Goths: wife-purchase among, i, 264.
West Victoria: divorce in, i, 229, 230.
West Virginia: solemnization of marriage in, ii, 413;
unauthorized celebration, 425;
marriages of freedmen, 426;
age of consent and of parental consent, 428-30;
forbidden degrees, 433, 435;
void or voidable marriages, 435 n. 3, 436, 437, 438;
miscegenation forbidden, 439;
favors marriage, 441;
license system, 447;
return, 449, 450;
state registration, 452;
divorce, iii, 52, 53;
remarriage, 82;
residence, 85;
process, 89;
alimony, 93;
rejects common-law marriage, 180;
age of consent to carnal knowledge, 200.
_Wette_ or _wed_: the formal contract, i, 268, 271;
derivation, and of kindred terms, 274 n. 4;
in self-betrothal, 278.
Wharton, W.: self-marriage of, ii, 289, 290.
Wheaton, Christopher and Martha: case of, ii, 190, 191.
Whitforde, Richard: on secret contracts, i, 350.
Whitefield, George: and the "great awakening," ii, 197.
Whitgift, Archbishop: defends English marriage ritual, i, 301 n. 3;
his controversy with Cartwright, 410-12;
defends the divorce jurisdiction of the spiritual courts, ii, 81;
presides in the council at Lambeth, 82 and n. 2.
Whitney, H. C.: cited, iii, 208 n. 2.
Whitmore, H. J.: quoted, iii, 146.
Whitmore, W. H.: on divorce in Massachusetts colony, ii, 331 and
n. 4, 332;
on the Freeman case, 338 n. 4.
Widow-men: among the Chambioás, i, 109 and n. 1.
Widow-sacrifice: i, 107 n. 1.
Widows: their nuptials among early Germans, i, 273 n. 1;
first to be emancipated from tutor's control, 277;
hand covered at second nuptials, 305 and n. 3.
Wife-capture, 1, 55, 56-58;
origin according to Morgan, 69;
McLennan's theory, 84, 85, 87 and n. 2, 117;
Spencer on, 117-20, 176 n. 1;
Lubbock on, 120;
and the symbol of rape, 156-79;
existing with wife-purchase, 179-84;
its significance exaggerated, 158, 162, 163, 184;
examples of actual, 158-62;
the symbol of rape, 163-80;
its coexistence with wife-purchase, 180-84;
implies economic progress, 201;
among the Germans, 258.
Wife-lending, i, 49, 50 n. 1, 52;
regulated in Australia, 53 n. 3, 71.
Wife-pawning and mortgaging, i, 194 and n. 3.
Wife-purchase, i, 55, 56-58;
its origin according to Morgan, 69;
place in the evolution of forms of marriage and the family, 55-65,
179;
at dawn of Teutonic history, 156;
place of, in the rise of the marriage contract, 179-201;
whether a universal phase of evolution, 179, 180;
coexistence with wife-capture, 180-84;
extent of the custom, 184, 185;
by exchange, 185, 186;
by service, 186-89;
for a price, 189-201;
implies economic advancement, 201, 202;
coexistent with free marriage, 210-20;
not found among some low tribes, 217, 218;
significance of gifts, 218, 219;
checks divorce, 249 and n. 1;
its existence among the Old English and early Germans, 253-86.
Wilda, W. E.: on adultery among early Germans, ii, 35.
Wilken, G. A.: on Arabian marriages, i, 17 and n. 3.
Willard, Frances E.: leader of crusade against age-of-consent laws,
iii, 196.
Willcox, Walter F.: cited, iii, 206 n. 2;
on the divorce rate in United States and Europe, 210 and n. 5,
211;
marriage and divorce rates fall in hard times, 215;
influence of legislation on the divorce rate, 216-18;
uniform laws of Switzerland, 222 n. 3.
Willey _v._ Willey, iii, 151.
William the Conqueror: his separation of lay and ecclesiastical
jurisdictions, Cartwright on, i, 411, 412.
Willis and Bowne: their petition, ii, 292, 293.
Windsor: regulates single men, ii, 152, 153.
Winslow, Edward: imprisoned in the Fleet for solemnizing marriage,
ii, 131, 132.
Winsor, Justin: cited, i, 9 n. 1.
Winthrop, Governor John: his testimony as to civil marriage,
ii, 127;
reason for not at first requiring it by statute, 132 n. 5;
on the law of adultery, 170 n. 1;
pre-contract, 179 n. 2;
Bellingham's marriage, 210, 211.
Winthrop, Widow: courted by Sewall, ii, 205, 207, 208.
Wintun, i, 146 n. 1, 217.
Wisconsin: marriage celebration in, ii, 462, 463, 265;
witnesses, 265;
unauthorized solemnization, 468;
definition, 471;
age of consent and of parental consent to marriage, 472, 473;
forbidden degrees, 473-75;
void and voidable marriages, 475-78;
license, 487, 488;
return, 489 and n. 3, 492;
celebrant's record and marriage certificate, 492;
state registration, 494, 495;
divorce, iii, 122-24;
remarriage, 149;
residence, 155;
notice, 158;
common-law marriage, 177;
age of consent to carnal knowledge, 203;
divorce rate, 210.
Withington, C. F.: on consanguine marriages, i, 130 n. 2.
Witnesses at marriage celebration: under law of 1653, i, 426;
required by the Hardwicke Act, 458;
under present English law, 471, 473.
---- in the American colonies: Maryland, ii, 241;
South Carolina, 260;
New Jersey, 310;
Pennsylvania, 318.
---- in the states, Rhode Island, ii, 394;
southern and southwestern, 423;
middle and western, 465, 466;
summary of laws, iii, 190.
Wittenberg consistory: as a model, ii, 70 n. 4.
_Witthum_, or bride-price, i, 259.
Wives by exchange, i, 185, 186;
by service, 186-89.
Wollstonecraft, Mary: her writings, iii, 237, 238.
Woman: her alleged status under mother-right or matriarchy, i,
40-46;
raised by a share in economic functions, 63;
functions of, in sexual selection, 202, 206, 207;
her liberty of choice in marriage, 208, 210;
effect of a share in labor, 211 and n. 4;
tutelage of, among early Germans, 259 n. 4.
---- her treatment as to divorce, at Athens, ii, 12 and n. 3;
among Hebrews, 12, 13, 20 n. 3;
by the Roman law, 14-19, 32;
according to scriptural teaching, 20;
views of the early Fathers, 24-26;
Augustine's view, 27;
that of Basil and others, 28;
Constantine's legislation, 30;
that of Theodosius II., 31, 32;
under early German law, 34-37;
her equality according to Christian principle, 37;
under Æthelberht, 39;
Council of Soissons, 42;
synods of Verberie and Compiègne, 42-44;
penitentials, 45, 46;
mature canon law, 53;
at the Reformation, 62, 65, 66;
English Reformers, 73;
Hooper, 74;
Bucer, 75, 76;
_Reformatio legum_, 79;
Milton, 86, 88-92;
under parliamentary divorce, 105, 106;
present English law, 110, 111, 114-17.
---- her liberation involves the destiny of the family, iii, 235;
early literature regarding, 236 and nn. 1, 2, 3, 237-39, notes;
effect of her new activities, 239-41;
of higher education, 242;
does educated woman shun maternity, 243-45;
effects of coeducation, 246;
of political and economic equality, 246-50;
how involved in the divorce problem, 250-53.
Women: may celebrate marriages in Maine, ii, 393.
Wood's case, ii, 384 and n. 2, 385.
Wood, Thomas D.: on the family life of the future, iii, 258, 259.
Wooer: the male as, i, 202-7;
opportunity for free wooing under wife-purchase, 212.
Wooing gifts, i, 218, 219.
Woolsey, T. D.: on attempted divorce of Hipparete, ii, 12 n. 3;
_porneia_, 20 n. 1;
Jewish law of divorce, 20 n. 3;
Paul's teaching regarding divorce, 21 n. 2;
Hermas's views on divorce, 28 and n. 1;
divorce by mutual consent under Christian emperors, 29, 30;
Constantine's divorce law, 31;
that of Theodosius II., 31, 32;
adultery under Christian emperors, 32 n. 4;
Luther's use of "desertion," 63 n. 1;
Zurich ordinance of 1525, 64, 65;
Luther's penalty for adultery, 67;
Foljambe's case, 82 n. 2;
voidable marriages, 94, 95;
legislative divorce in the New England colonies, ii, 349 n. 2.
Wotjäken: proof-marriages among, i, 49 and n. 2;
wife-lending among, 49, 50;
prostitution of girls, 49 n. 1.
Wren, Bishop: his orders regarding the marriage celebration, i, 417
and n. 3.
Wright, Carroll D.: his report on marriage and divorce, iii, 205,
209, 210;
quoted on migration for divorce, 206;
judicial administration of divorce laws, 207;
influence of legislation, 218;
late marriages, 243;
moral character of divorce, 252, 253.
Wright's case, ii, 191 n. 2.
Wundt, W.: cited, i, 98.
Würtemberg: ordinance of, ii, 68.
Wyandots: position of woman among, i, 45;
polyandry prohibited among, 143 n. 1.
Wyatt, Walter: the Fleet parson, i, 442 n. 1.
Wyoming: marriage celebration in, ii, 464;
witnesses, 465;
unauthorized solemnization, 468;
definition, 470;
age of consent and of parental consent to marriage, 472, 473;
forbidden degrees, 473-75;
void and voidable marriages, 475-78;
license, 487, 488;
return, 489 and n. 3, 491;
marriage certificate, 492;
divorce, iii, 130, 131;
remarriage, 148;
residence, 157;
notice, 158;
courts silent as to common-law marriage, 182;
age of consent to carnal knowledge, 201.
Yaméos: avoid marriage with persons of same community, i, 128.
Young, Ernest: denies _patria potestas_, among Germans, i, 260,
note.
York: its marriage ritual, i, 284, 301, 303-8, 311.
Yucatan: pueblos in, i, 129;
marriage by service, 186;
husband's sole right of divorce, 231.
Yurok, of California: husband's sole right of divorce among, i, 231.
Zara: effects of divorce in, i, 242.
_Zeitehen_, i, 49 and n. 3, 235 n. 1.
Zimmer, H.: on Hindu wife-purchase, i, 197, 198 n. 1.
Zoepfl, H.: on Tacitus's account of the betrothal, 262 n. 2;
canon-law betrothal, 293 n. 1;
divorce among the early Germans, ii, 34 n. 1.
Zulus: bride-price among, i, 193, 194;
love a check to divorce, 248.
Zwingli, Ulrich: his liberal views on divorce, ii, 64.
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