and three months. The code Napoleon regards marriage only as a civil contract, and allows divorces not only for several reasonable causes, such as adultery, and grievous injuries, to be submitted to a judicial tribunal, but also without cause, and founded merely upon mutual consent, according to the usage of the ancient Romans. This consent is subjected to several restraints, which do in fact create very great and serious checks upon the abuse of the privilege. By the Dutch law, there are but two just causes of divorce a vinculo, viz. adultery and malicious desertion; and, by the English law, a marriage, valid in its commencement, cannot be dissolved for any cause, without an act of Parliament.d This was not the case in England anciently;e and until the 44th Eliz. divorces a vinculo were allowed for adultery. But in Foliamb's *case, 44 Eliz., it was *105 held, in the star chamber, that adultery was only a cause of divorce a mensa et thoro,f and the archbishop of Canterbury said in that case, it had been so settled. before him, on appeal, by many divines and civilians. In some of the United States, divorces are restrained,

2 Quarterly Review, No. 56, p. 509.

b Code Napoleon, No. 233, 275 to 297. Toullier, in his commentaries on the code, cannot withhold his astonishment at the perversion of moral sentiment which prevailed, even among the enlightened and exalted jurisconsults of ancient Rome, on the subject of the right of divorce. Droit Civil Francaise, tom. 6. No. 294-298. Since the restoration of the Bourbon dynasty the law of divorce in France has been changed, and in 1816 it was confined to a judicial sentence of separation from bed and board.

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

d 1 Black's Com. 441. I observe that in the session of Parliament in 1844, four different private acts of Parliament were passed in favour of divorces a vinculo in individual cases, and allowing the husband to marry again. • Bracton, fol. 92.

t Moore's Rep. 683. pl. 942. 3 Salk. 138.

& Georgia, Mississippi and Alabama. In Georgia two concurring verdicts of special juries are conclusive on the subject of divorce, whether absolute or VOL. II.

10

even by constitutional provisions, which require to every valid divorce, the assent of two thirds of each branch of the legislature, founded on a previous judicial investigation and decision. The policy of other states is exceedingly various on this subject. In several of thema no divorce is granted, but by a special act of the legislature, according to the English practice; and in others, the legislature itself is restrained from granting them, but it may confer the power on the courts of justice. So strict and scrupulous has been the policy of South Carolina, that there is no instance in that state, since the revolution, of a divorce of any kind, either by the sentence of a court of justice, or by act of the legislature. In all the other states, divorces a vinculo may be granted by the courts of justice for adultery.d In New-York the

only limited. There had been from 1800 to 1837, 291 legislative divorces. Prince's Dig. 2d edit. p. 187.

a

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

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

vorces.

↳ Tennessee, North Carolina, Arkansas, Michigan, New-Jersey, Florida, and New-York.

c South Carolina Equity Reports, vol. i. Int. p. 54. Vol. ii. p. 646. d In, Louisiana, by statute in 1827, a divorce a vinculo for adultery may be obtained by judicial decree. Adams v. Hurst, 9 Loui. Rep. 243. The civil code of Louisiana, art. 133, says that the marriage may be dissolved by a divorce legally obtained, but it does not define the causes that will authorize it. If the action for a divorce be founded on the abandonment of the wife by the husband, proof of the abandoment for five years is requi

jurisdiction of the court as to absolute divorces, for causes subsequent to the marriage, is confined to the single case of adultery; but in most of the other states, in addition

site, and also a decree of separation from bed and board rendered two years previously. Harman v. M'Leland, 16 Loui. Rep. by Curry, 26.

a Maine, New-Hampshire, Massachusetts, Connecticut, Vermont, NewJersey, Pennsylvania, Delaware, Ohio, Indiana, Michigan, Kentucky, Illinois, Mississippi, Missouri, North Carolina, Georgia, Alabama, &c. In 1809, wilful desertion, without cause, for five years, was made the ground for a decree of divorce in the state of Maine, but the divorce was not to bar the issue from inheriting; and if the wife was the libellant, she was to be entitled to her dower. In Massachusetts, by act of 1838, and in NewJersey, by act of 1820, the like wilful desertion for five years without consent, was made a ground of divorce. In Kentucky an abandonment by the wife for one year is good cause of divorce to the husband. Act March 2d, 1843. In North Carolina, by statute, in 1814, the superior courts were authorized to grant divorces in two cases only. (1.) For impotency at the time of the marriage, and continuing. (2.) For adultery. But the act of 1827 gave the courts an unlimited discretion to grant divorces, either a vinculo, or a mensa et thoro, whenever the court should be satisfied that justice required it. N. Carolina Revised Statutes, 1837, vol. 1, 239. This vast power and discretion were found by the supreme court to be exceedingly embarrassing and painful in the exercise, and of which we have a striking instance in the case of Scroggin v. Scroggin, 3 Dev. Rep. 540. Adultery and fornication between parties living together in that condition, are indictable offences in North Carolina and Alabama. 1 Revised Statutes of North Carolina, 1837, p. 202. Laws of Alabama, p. 224. Griffith's Law Register, h. t. 1 New-Hampshire Rep. 198. Reeve's Domestic Relations, 205. Brackenridge's Law Miscellanies, 421. Laws of Vermont, edit. 1825, p. 363. Revised Laws of Illinois, 1833. Reavis v. Reavis, 1 Scammon's Ill. Rep. 242. Walker's Mich. Ch. R. 53. December, 1833, in Illinois, the courts of chancery were authorized in addition to the already assigned causes for a divorce, upon pleadings and proofs, to decree divorces a vinculo, "if they should be satisfied of the expediency of making such a decree."

By an act of 4th

In Indiana and Missouri divorces a vinculo are granted for impotency, former subsisting marriage, adultery, abandonment by either party for two years, condemnation for a felony, barbarous and inhuman treatment by the husband, or his habitual drunkenness for two years, and also "in any other case where the court, in their discretion, shall consider it reasonable and proper that a divorce should be granted." 2 Blackf. Ind. Rep. 408. Revised Statutes of Indiana, 1838, p. 242. R. S. of Missouri, 1835, p. 225. In Tennessee, under the act of 1799, a divorce a vinculo was sustained for adultery and malicious absence, though the marriage

to adultery, intolerable ill-usage, or wilful desertion, or unheard-of absence, or habitual drunkenness, or some of them,

was in another state; but the party entitled must be a citizen of the state, and resident for one year immediately preceding the bill. Fickle v. Fickle, 5 Yerger's Rep. 203. The constitution of Tennessee, of 1835, enables the legislature to authorize the courts, by laws of general and uniform operation, to grant divorces, for causes to be specified, and by statute in 1835, adultery, malicious desertion, or wilful absence for two years, or conviction of an infamous crime, were declared to be causes for judicial divorce. Statute Laws of Tennessee, 1836, p. 257.

In New-Hampshire desertion by the husband for three years without provision for the wife's support, or joining the religious society of the Shakers, who hold cohabitation unlawful, and continuing in that society for three years, is a sufficient cause for a divorce. Dyer v. Dyer, 5 New-Hampshire Rep. 271. Clark v. Clark, 10 N. H. Rep. 388. Union with an y such sect is also ground for a divorce in Kentucky. In Connecticut, divorce a vinculo applies to cases of adultery and intolerable cruelty, and habitual intemperance, and fraudulent contract, and wilful desertion for three years, with total neglect of duty, or seven years absence, and being unheard of during the time. Statute Code, 1702. Ibid. 1784. Ibid. 1821, p. 178. Statutes of Connecticut, 1838, p. 185. Statute of Connecticut, 1843. This last statute requires a residence of three years after removal from another state or nation before a petition for a divorce can be allowed unless the cause of divorce arose since the removal of the party to a state. The statute of 1667 has remained the same in substance down to this day, though, during all that period, the legislature has occasionally passed special acts of divorce a vinculo. Daggett, Ch. J., in Starr v. Pease, 8 Conn. Rep. 541. The power of granting divorces in Connecticut is conferred upon the superior court, and it is declared that no petition or memorial shall be preferred to the general assembly, but in cases where no judicial court is, by law, competent to grant relief. Statutes of Connecticut, 1838, p. 185. 324. Shaw v. Shaw, 7 Conn. Rep. 189, on the question of cruelty. Divorces in Maine, are placed under similar regulations. 16 Maine Rep. 479, app. This legislative provision must now put an end to the former irregular practice. In Maryland by act of 10th of March, 1842, the chancellor and the county court as courts of equity have jurisdiction in cases of divorce; and if the defendant has abandoned the complainant and has remained absent from the state for five years, a divorce a vinculo may be had. A subsequent statute of 10th of March, 1845, has shortened the period of abandonment to three years, provided the abandonment has continued uninterruptedly and is deliberate and final, without any reasonable expectation of reconciliation. But by statute of 9th March, 1844, no application for a divorce is to be sustained, when the cause of the divorce occurred out

will authorize a decree for a divorce a vinculo, or from bed and board, under different modifications *and restrictions. The question of divorce involves *106 investigations which are properly of a judicial na

ture, and the jurisdiction over divorces ought to be confined exclusively to the judicial tribunals, under the limitations to be prescribed by law.a

of the state, unless the complainant has resided in the state for two years next preceding the application.

In Ohio, the supreme court is authorized to grant a divorce, if either party had a former husband or wife living at the time of the second marriage, or where either party is wilfully absent from the other for three years; and in cases of adultery or impotency at the time of the marriage, or in case of extreme cruelty, or where either party is imprisoned in the penitentiary for a crime, and application is made for the divorce pending the imprisonment: Statute of Ohio, 1824; and also in all cases of fraudulent contracts, and of habitual drunkenness for three years, and for a total and gross neglect of duty.-Act, 1834. For the Revised Statutes of Massachusetts, 1835, on the subject, vide supra, p. 96. Note b. In Vermont imprisonment in the state prison for three years or more, and being actually confined, is ground for a divorce. Revised Statutes of Vermont, 1839. In Massachusetts, by the statute of 17th April, 1838, wilful and utter desertion by either party from the other for five years consecutively, and without consent, is a ground for divorce. This statute of 1838, introduced a great change in the law of divorce, and in addition to adultery, confined the divorce a vinculo to this case of wilful and utter desertion, leaving the cases of extreme cruelty, and gross and wilful neglect of a suitable maintenance, to be redressed by a divorce from bed and board. Pidge v. Pidge, 3 Metcalf, 257. In Maine, by statute, 1838, a confirmed and common drunkard for three years may be divorced. In Pennsylvania, impotency, adultery, wilful and malicious desertion for two years, barbarous treatment by husband, &c., are grounds for a divorce a vinculo or a mensa et thoro in the latter case. Prudon's Dig. 268. 270. The statute of New-Hampshire, 1839, ch. 457, authorizes divorce for incest, bigamy, impotency, adultery, absence for three years unheard of, extreme cruelty in either party, or wilful absence of either party for three years.

The legislature of Maine, in 1838, by concurrent resolution, declared, that to dissolve the marriage contract was rightfully a judicial and not a legislative power. The law of Mississippi required every judicial decree of a divorce a vinculo to be sanctioned by a law or resolution of two-thirds of both branches of the legislature. R. C. of Mississippi, 1824, p. 230. But by the constitution and statute law of Mississippi, as they existed in 1843,