It is an encouraging sign of advancing culture that history is gaining a deeper and broader meaning. We are really becoming interested, not merely in our political, but also in our entire biological, psychological, and social evolution. Although such phrase-making is nearly always misleading, there would perhaps be more truth in saying that “history is past sociology and sociology present history” than in Freeman’s well-known epigram. In particular, the human family, with all that the word connotes, is commanding greater attention. Yet there is urgent need that its rise and social function should have far more earnest study than they now receive. The family and its cognate institutions ought to enter more fully into popular thought; and they should have much larger relative space in the educational program. From the home circle to the university seminar they are worthy to become a vital part of systematic social training. In the hope of aiding somewhat in winning for them due scientific recognition, this book is written. It seems not impossible that a sustained history of the matrimonial institutions of the English race in its “three homes” may prove a positive advantage, especially in gathering the materials and planning the work for more detailed investigations. Moreover, a thorough understanding of the social evolution of any people must rest upon the broader experience of mankind. Accordingly, in Part I the attempt is made to present a comprehensive and systematic analysis of the literature and the theories of primitive matrimonial institutions.
MATRIMONIAL INSTITUTIONS IN THE UNITED STATES
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.” 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. 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. 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.
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.” 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;” and this is typical of the tendency in other states to adopt what is now the prevailing usage.