Page:Encyclopædia Britannica, Ninth Edition, v. 7.djvu/322

304 DIVORCE stitutioii of the United States says that no State shall pass a law impairing the obligation of contracts, and it has been argued that this clause prohibits legislative divorces. Bishop states that it &quot;is settled law that legislative divorces are not invalid as impairing the obligation of contracts.&quot; Again, some States forbid their legislatures to pass any retrospective laws ; and legislative divorce, it has been said, is of the nature of a retrospective statute, and authority on that point seems to be divided. Again, in some States it is contended that a legislative divorce is an infringement of the judicial power, and therefore unconstitutional. The judicial practice throughout the States is to confer jurisdiction in divorce on the courts of equity, to be administered in general accordance with the ordinary rules of equity practice. Each State of course determines for itself the causes for which divorce may be granted, and no general statement of the law can be made. In most States it appears to be allowed, not only for adultery, but for cruelty, wilful desertion, and habitual drunkenness. In New York divorce is allowed only for adultery ; in South Carolina not for any cause ; in some other States for causes to be determined by the court in the exercise of its discretion. South Carolina, says Bishop (Marriage and Divorce, 1873), is the only State in which no divorce, legislative or judicial, has ever for any cause been granted ; and he quotes judicial testimony to show that the effect of this state of things is to bring about a partial recognition of concubinage. The proportion of his goods which a married man may leave to his concubine has in fact been fixed by statute. Among the less usual grounds for divorce which have been recognized in particular States, habitual drunkenness has been mentioned above, which has been denned to be a fixed habit of drinking to excess, to such a degree as to disqualify a person from attending to his business during the principal portion of the time usually devoted to business. In Kentucky the offence must be accompanied with a wasting of his estate, and without any suitable provision for the wife and children. Grosu neglect of duty, and more particularly neglect or refusal to maintain his wife on the part of a husband having ability to do so, are in some States grounds of divorce. In New Hampshire, if either spouse joins a society believing the relation of husband and wife to be unlawful, and accordingly refuses cohabitation for three years, that is a sufficient ground of divorce, and &quot; the Shakers&quot; have been held to be such a society. In the same State &quot; to be absent and not heard of&quot; for three years is ground for divorce. Conviction for crime is a tolerably common ground. &quot;Grossmisbehaviourandwickedness,&quot; and &quot;oiler- ing indignities to the wife so as to render her condition intolerable and her life burdensome,&quot; are also specified causes of divorce in some States. In Missouri and North Carolina it has been held under such a clause that a fal*e accusation of adultery brought by the husband against the wife was a valid ground for divorce ; and in Missouri, where the court subsequently held that the statute con templated indignities to the person only, and not to the mind (as in the case of a false charge), the State legislature amended the statute by specifying as a cause for divorce &quot;the offering such indignities to the other as to make his or her condition intolerable.&quot; The effect of this diversity of jurisdictions in producing a conflict of laws is noted below. France. Freedom of divorce was one of the short-lived results of the French Revolution. The code civil (1803) allowed divorce and judicial separation, although then the advocates of free divorce appear to have desired the exclusion of the latter remedy. The husband might demand divorce for adultery ; the wife for adultery when the husband has kept his paramour in the conjugal residence. Either party might demand divorce for outrage, cruelty, or grave injuries (exces, seviccs, ou injures graves), or on account of condem nation to an infamous punishment. Divorce by mutual consent was also allowed, but under close restrictions as to the age of the parties, the duration of the marriage, the consent of relations, the protection of the children, &c. No new marriage could be made by either party within three years of this divorce. Separation was also allowed as an alternative remedy, but not by consent. When sentence of separation has been pronotmced against the wife for adultery, she shall be condemned, on the requisition of a public officer, to confinement in a house of correction for a period of not less than three months, and not more than two years. In 1816 the divorce clauses of the code civil were abolished, but judicial separation was retained. Subsequent attempts to restore freedom of divorce have been unsuccessful. The law of divorce being thus different in different countries, while people are constantly moving from one country to another, there arises the juridical difficulty of the conflict of laws. A man born in one country, married in a second, and domiciled in a third, may there sue for a divorce on account of a matrimonial offence committed in a fourth. How is such a case to be decided, and what will be the effect of the decision in other countries than that in which it was pronounced 1 It is in the jurisprudence of England and Scotland, as Story points out, that such questions have been most satisfactorily discussed. On the Continent the prevalence of the canon law, and the in difference of domestic tribunals to the opinion of foreign countries, have made these questions of less importance than they have been with us. England and Scotland stand to each other legally in the relation of foreign countries, while socially and politically they are one country. On the fundamental question whether marriage can be dissolved or not they took, until the passing of the English Divorce Act, different sides. When an English marriage was brought before the Scotch courts on a matrimonial complaint, they dissolved the marriage, while the English courts after such a dissolution held that the marriage still subsisted in full force and effect. The House of Lords, which was at once the highest court of appeal in Scotch and in English law, may almost be said to have decided the same question in two different ways, holding that by the Scotch law the dissolution was good for Scotland, and not denying that by the English law it was bad for England. The two cases ou which this opposition of views was most distinctly brought out were Lolley s case (1 Russell and Ryan) and Warrender v. Warrender (2 Clark and Fiunelly). In the formercase a man was convicted for bigamy for marrying again after having had his English marriage dissolved by the Scotch courts for his wife s adultery. The latter was an appeal to the House of Lords from the Court of Session asserting jurisdiction to decree divorce from an English marriage, and in the result it was held that the House of Lords in a Scotch case was bound to administer the law of Scotland, and that by the law of Scotland the jurisdiction was well founded. But the judgment in Lolley s case was not overruled ; and although English marriages are no longer indissoluble, it may be presumed that the principle of that case would be applied when an English marriage had been dissolved in a foreign country for an offence not recognized as a valid ground of divorce in England. The following more recent cases may bo noted as illustrating the attitude of English law towards foreign divorces. When the marriage took place in England, but the parties never lived together, and the husband committed adultery, and afterwards by arrange ment went to Scotland for the purpose of founding a juris diction against himself, and the Scotch court pronounced a decree of divorce, it was held that a Scotch marriage duly celebrated between the divorced wife and an Englishman did not give to the children of the marriage the character of lawfully begotten so as to enable them to succeed to property in England. So when A, an Englishwoman, married B in Scotland, and was again married to him in Belgium, and afterwards a Belgian court pronounced a decree of divorce by mutual consent, it was held that A s subsequent marriage to C in England was null and void, and that the Scotch marriage was still valid and subsisting. Again, a petitioner whose original domicile was English, and who married in England, resided two years and a half in one of the United States, and then obtained a divorce from a competent court there for grounds re cognized in England, but without personal notice to the husband, who had never been within the State, and whose domicile con tinued to be English ; it was held that her re-marriage in America during the lifetime of her husband was invalid in England. Had the petitioner been legally domiciled in the State which granted the divorce it appears that the English courts could have recognized the decree. In this class of questions may be placed those which have arisen as to the jurisdiction of the court. Here four points are mentioned in the English text-books as material, viz., allegiance, the place of marriage, the place of domicile, and the place of the delictum (see DOMICILE.) The court