FOOTNOTES:

FOOTNOTES:[1]Const. of Mass.(1780), chap. 3.[2]For the document containing this veto seeActs 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.[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 The clause forbidding marriages between a white person and a negro, Indian, or mulatto was repealed Feb. 25, 1843:Supp.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, withRev. Stat.(1843), 293, when the modern usage was adopted. For Rhode Island seePub. Laws(1798), 497, and later revisions; for Maine compareLaws(1821), I, 344, 345, withRev. Stat.(1847), 364 (modern usage).[8]On the confusing use of terms seeBishop,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.[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 divorcea mensa et thororemain unaltered inRev. 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).[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.[17]Act of May 9, 1867:Supp. to Gen. Stat. of the Com. of Mass., 1860-72, I, 565, 566.Cf.98Mass. Reports, 408; 104ibid., 567.[18]See above chap. xi, sec. iii,d).[19]So by an act of 1870 the decreenisimayin three years andshallin five years be made absolute, upon proof of the parties living separate during the period; if they live together, the decreenisibecomes 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 notnisi":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.[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 inPub. Stat.(1882), 813.[26]See theIndex 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 inPoore,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 inConst. and Laws of the State of N. H.(1805), 18.[29]SeeLaws of N. H.(1855), 1542; alsoGen. 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.[32]Counting divorce for injury to health or endangering reason as two grounds, as in theRev. 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; alsoGen. Stat. of the State of N. H.(1867), 335.[36]They are still in force inPub. 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.[37]See chap.XV, sec. i,c).[38]So in theActs and Laws of his Majesty's Colony of Conn.(1750), 43; inActs and Laws(1784), 41;ibid.(1805), 457; thePub. 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 Shawv.Shaw, 17Conn. 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; alsoibid.(1875), 188.[43]Pub. Acts(1878), 305.[44]The eight causes already named appear inGen. Stat.(1887), 612; and no later action seems to have been taken.Cf.Gen. Stat.(1902), 1090, 1091.[45]So in 1798:Pub. Laws of R. I.(1798), 481. See alsoGen. 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.[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: seeLaws of Vt.(1825), 364, 365, note.[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; alsoSmith,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.[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 inRev. 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.[72]Case of West Cambridgev.Lexington (Oct., 1823), 1Pickering, 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 inPerpetual 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, beingin pari materia, must be construed together, and the exception in the first cited statute in favor of such persons, would avail."—1Pickering, 509.[73]See 1Pickering, 510, 511.[74]Case of Putnamv.Putnam, 8Pickering, 433-35 (Sept., 1829).[75]Act of March 13, 1841:Acts and Resolves(1841), 371; also inSupp. 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 10Allen, 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.[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.[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 inStat. of Vt.(1894), 511, 512. The penalty for violation of this provision is imprisonment from one to five years.[86]Laws of N. H.(1840), 488, 489. See subsectiona) above.[87]Pub. Stat. of N. H.(1900), 591.[88]Pub. Laws of R. I.(1902), 41.[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.[91]Pub. Stat. of the State of N. H.(1891), 495;ibid.(1900), 590, 591.[92]Raised from one year to two byPub. 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 byActs and Resolves(1903), 31.[99]Rev. Stat.(1884), 522.[100]SeeActs and Laws(1797), 457; alsoStat. 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.[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 seeActs 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.[108]Act of June 2, 1898:Acts and Resolves, 443;cf.Rev. Laws(1902), II, 1353, 1354.[109]Rhode Island, inPub. 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 seePub. Stat.(1882), 428; superseded byGen. Laws(1896), 635.Cf.Stat. of N. H.(1891), 497.[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.[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.[120]Pub. Stat. of Mass.(1882), 814-16;Rev. Laws(1902), II, 1355.[121]For New Hampshire, seePub. 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 alsoGen. 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.

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

[2]For the document containing this veto seeActs 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.

[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, withRev. Stat.(1843), 293, when the modern usage was adopted. For Rhode Island seePub. Laws(1798), 497, and later revisions; for Maine compareLaws(1821), I, 344, 345, withRev. Stat.(1847), 364 (modern usage).

[8]On the confusing use of terms seeBishop,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.

[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 divorcea mensa et thororemain unaltered inRev. 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).

[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.

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

[18]See above chap. xi, sec. iii,d).

[19]So by an act of 1870 the decreenisimayin three years andshallin five years be made absolute, upon proof of the parties living separate during the period; if they live together, the decreenisibecomes 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 notnisi":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.

[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 inPub. Stat.(1882), 813.

[26]See theIndex 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 inPoore,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 inConst. and Laws of the State of N. H.(1805), 18.

[29]SeeLaws of N. H.(1855), 1542; alsoGen. 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.

[32]Counting divorce for injury to health or endangering reason as two grounds, as in theRev. 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; alsoGen. Stat. of the State of N. H.(1867), 335.

[36]They are still in force inPub. 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.

[37]See chap.XV, sec. i,c).

[38]So in theActs and Laws of his Majesty's Colony of Conn.(1750), 43; inActs and Laws(1784), 41;ibid.(1805), 457; thePub. 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 Shawv.Shaw, 17Conn. 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; alsoibid.(1875), 188.

[43]Pub. Acts(1878), 305.

[44]The eight causes already named appear inGen. Stat.(1887), 612; and no later action seems to have been taken.Cf.Gen. Stat.(1902), 1090, 1091.

[45]So in 1798:Pub. Laws of R. I.(1798), 481. See alsoGen. 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.

[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: seeLaws of Vt.(1825), 364, 365, note.

[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; alsoSmith,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.

[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 inRev. 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.

[72]Case of West Cambridgev.Lexington (Oct., 1823), 1Pickering, 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 inPerpetual 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, beingin pari materia, must be construed together, and the exception in the first cited statute in favor of such persons, would avail."—1Pickering, 509.

[73]See 1Pickering, 510, 511.

[74]Case of Putnamv.Putnam, 8Pickering, 433-35 (Sept., 1829).

[75]Act of March 13, 1841:Acts and Resolves(1841), 371; also inSupp. 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 10Allen, 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.

[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.

[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 inStat. of Vt.(1894), 511, 512. The penalty for violation of this provision is imprisonment from one to five years.

[86]Laws of N. H.(1840), 488, 489. See subsectiona) above.

[87]Pub. Stat. of N. H.(1900), 591.

[88]Pub. Laws of R. I.(1902), 41.

[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.

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

[92]Raised from one year to two byPub. 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 byActs and Resolves(1903), 31.

[99]Rev. Stat.(1884), 522.

[100]SeeActs and Laws(1797), 457; alsoStat. 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.

[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 seeActs 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.

[108]Act of June 2, 1898:Acts and Resolves, 443;cf.Rev. Laws(1902), II, 1353, 1354.

[109]Rhode Island, inPub. 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 seePub. Stat.(1882), 428; superseded byGen. Laws(1896), 635.Cf.Stat. of N. H.(1891), 497.

[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.

[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.

[120]Pub. Stat. of Mass.(1882), 814-16;Rev. Laws(1902), II, 1355.

[121]For New Hampshire, seePub. 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 alsoGen. 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.

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