other, becomes a perpetual obligation, which cannot be cancelled at the option of either or both parties. It has always been deemed the policy of the law, to hold this relation, as nearly as possible, indissoluble; and, in general, it continues in force until dissolved by the death of one of the parties, or by divorce.

Divorces are of two kinds: first, divorce from the bond of matrimony; second, divorce from bed and board. It is generally agreed in all christian communities, that divorces ought not to be granted, except upon important and controlling considerations. But upon the question, what are such important and controlling considerations? there has been great diversity of opinion in legislation. Parties have been held more strictly to the contract in England than, generally, in the United States; and again, in some of the States, divorces from the bond of matrimony are granted much more liberally, and for less controlling causes, than in others. The laws governing this subject are easily found upon the statute books of each of the several States, and it is not desirable that they be given in detail here; and only a brief reference will be had to the general principles upon which they rest.

Divorce from the bonds of matrimony is granted in England, and in all our States, for the cause of adultery, and also for the cause of physical impotence existing prior to the marriage. It will be readily seen, that either of these strikes at the foundation of the marriage contract; and there can be no doubt that an absolute divorce should be granted, whenever either of these causes is clearly established. Beyond this, there is no general unity of sentiment; some of the States providing that a divorce from bed and board shall be decreed, upon the wilful absence of either party for a limited number of years, extreme cruelty, gross neglect of duty, imprisonment in the State prison, or for such general misconduct as permanently destroys the happiness of the petitioner and defeats the purposes of the marriage relation. In other States again, these same causes, as in Indiana and Connecticut, are severally made the substantive ground upon which a divorce from the bond of matrimony may be decreed. In

Indiana, no stipulated term of prior residence of the petitioner is required, which has made that State the favorite resort of persons desiring to obtain a divorce, for reasons insufficient under the laws of the State of their residence. In Connecticut, on the other hand, unless the cause of divorce arose in the State, the petitioner must have had an actual residence therein of not less than three years. In Massachusetts, the divorce from bed and board is allowed for much the same reasons as in Connecticut the parties are divorced from the bond of matrimony, and parties who have remained separate for three years after a divorce from bed and board are entitled to a divorce from the bond of matrimony.

SECTION 5.

The whole matter being subject to statute regulations, and it being a question in relation to which there is the greatest diversity of sentiment, the laws and regulations will, of course, differ very widely, and we find that in many of the States, no divorce from bed and board is allowed.

Indeed, by many persons, this compromise between the extreme views of the different parties upon the vexed question is thought to be a worse evil than a liberal, and even a lax, allowance of absolute and full divorces. Bishop alludes to it as follows: (Bishop on Marriage and Divorce, Sec. 277,) "Here also we see the origin of that excrescence, that carbuncle on the face of civilized society, that demoralizing, mock remedy for matrimonial ills, which, in the language of Lord Stowell, casts out the parties in the undefined and dangerous characters of a wife without a husband and a husband without a wife,' in the language of Judge Swift, 'places them in a situation where there is an irresistible temptation to the commission of adultery, unless they possess more frigidity or more virtue than usually falls to the share of human beings,' and, in the language of Mr. Bancroft, punishes the innocent more than the guilty,' the divorce a mensa et thoro. The sickly religious sentiment, that all marriages, whether wisely made with the sanction of heaven, or otherwise, and whether they answered a single one of the ends of the mar

riage institution or not, were still indissoluble, could not quite banish from the minds of men that common sense, that would revolt at compelling a woman to cohabit with a husband who was seeking her life, or living in adultery; and, therefore, the separation termed a divorce from bed and board confessedly not sanctioned in scripture, was invented as a compromise between good sense and good doctrine.""

Massachusetts is an illustration of the full and liberal working of the system of the qualified divorce, and Connecticut of the absolute one; and whatever may be said of the evil tendency of either and both systems, it must be admitted, by every candid and intelligent person, that notwithstanding this liberty of divorce, of the one kind and the other in the two States, or in consequence of it, "there are no States of the Union in which domestic felicity and purity, and unblemished morals, and matrimonial confidence and virtue, more abound," than in Connecticut and Massachusetts.

It is said, that the doctrine of the indissolubility of marriage did not become a general tenet of the church until the council of Trent, A. D. 1563, established it as such, though it had prevailed to a considerable extent, and found its way into England and Scotland before that time; but it is well known, that it became a doctrine of the Roman Church that marriage was a sacrament, and that the bond of union thereby created is absolutely indissoluble, except upon the dispensation of the Pope. The English Church, under Edward VI, attempted to carry out the inquiry commenced by Cranmer and other leading dignitaries of the reformed church party under Henry the VIII. An able board of commissioners discussed the subject at great length, expended upon it a vast amount of time and research, and reported that in their judgment the indissoluble quality should no longer attach to the contract, but that in cases of adultery, malicious desertion, long absence, or capital enmities, the marriage should be dissolved, with liberty to the injured party to marry again.

It is familiar history, that the Puritans not only abjured the Romish idea, that marriage was a sacrament, and, there

fore, indissoluble, but went to so an opposite extreme, that, in some of the colonies, clergymen were prohibited from performing the marriage ceremony, and it was made compulsory that parties should enter into the contract in the presence, and with the sanction of a civil magistrate.

Its past history can hardly be a guide, and, from its character, in which it exhibits much the same diversity as exists among the best of people at the present time, it will, perhaps, have but little influence upon the State legislation, which entirely controls the subject. The question is mainly one of social and political expediency and propriety. The State has an imperative and controlling interest in the morality and the legitimate increase of its citizens. The question is now agitated from year to year, and is mainly discussed upon these grounds. To hit and settle upon the true medium ground, between that idea of marriage, which places it among the sacraments, and indissoluble, even for adultery, except upon a dispensation from the Pope, which ordinary people have not the influence to procure; and the opposite extreme, of permitting divorces at the pleasure of the parties, is greatly desirable, and will be the aim of all prudent legislation. It may be found, that the great difficulty lies. less in the legislation than in the fraud and connivance of parties, who deceive the courts and obtain divorces, to which they are not fairly entitled, under the laws as they exist.

SECTION 6.

Of Legislative Divorces.

Anciently, in England, divorces for adultery were from the bonds of matrimony: but afterward, the law was changed, and for a long period all judicial divorces in England were merely from bed and board, unless for causes existing before the marriage. This rule is said to have been established by the Court of Star Chamber, by the Archbishop of Canterbury and other divines and civilians in 1601. The reformation in religion brought with it the doctrine that the commission of adul

tery, if not other offences, should entitle the injured party to be freed from the bond of the marriage. The commission alluded to, in the last section, as reporting changes in the law upon this subject, failed, by reason of the death of Edward, to establish the alterations proposed.

As the doctrine had become established, it was to be expected that injured parties would endeavor in some way to avail themselves of its practical benefits. As the courts had no authority, no other means could be resorted to but relief by special act of parliament, granting a divorce in each individual case. Hence arose the practice, which to some extent has been introduced and acted upon in these States, of granting legislative divorces. This is done in different ways. In some of the States, the method has been, to empower one of the judicial tribunals to investigate the cause alleged, and grant the divorce if the complaint is sustained. In others, the English practice is adopted, of enacting directly a decree of nullity or a sentence of divorce. We have seen, in Chapter I, that the British Parliament exercise a higher or more unrestrained power than any legislative assembly in this country. It is doubtful, however, if, in this particular, our State legislatures have any less authority than the English Parliament, unless where, as in some of the States, they are restrained by constitutional prohibitions. The question has been frequently agitated, whether our legislatures are not restrained, in all cases, by considerations arising out of some of the provisions of the Constitution of the United States or of the particular State.

In the first place, some have claimed, that such divorces by a State legislature are an infringement of the provision of the Constitution of the United States, that no State legislation shall "pass any law impairing the obligation of contracts." But, as we have stated in the first section of this chapter, the marriage contract has not, ordinarily, been held to be embraced within that constitutional inhibition. Story's Conflict of Laws, sect. 108, note. Starr vs. Pease, 8 Conn., 541; 16 Maine, 481; Bishop on Marriage and Divorce, sect. 761; Butler vs. Penn., 10 Howard, 402, 416.