Page:Harvard Law Review Volume 4.djvu/48

32 32 HARVARD LAW REVIEW, To decree a sum of money (alimony) from one individual td another, without written pleadings, duly served, in a lawful suit, " according to the law of the land," is simply a forfeiture and confiscation of property.^ A criminal can know, from the penal codes, to what extent he may be fined for some forbidden act. But the penalty for an act forbidden by divorce law, in a suit often termed " quasi criminal," is limitless, if none need be alleged. The tendency of American constitutions is to repress anything like confiscation, attainder, forfeiture. Is there no limit to the forfeiture of property that the unfortunate husband may suffer when cause for divorce is apparently made out by a woman seek- ing release from her marriage vows? The true husband may have had good and proper reason for wishing to surrender a wife recently unworthy, and for being un- willing to resist a simple action for divorce. Is he liable, if he is silent, if he refuses to answer only to that extent — the extent of the divorce charges — to have his entire property swept from him, perhaps, by a hasty decree, in his absence, without notice of the calamity until it has happened? Let us assume that she swears, with her easy readiness, that her husband is " worth a million dollars," and orally asks a decree for $500,000. Is she not as equally entitled to it, under the hypothetical libel, as to a decree for $1,200? Allegations of amounts, figures, boundaries, limits, are all totally wanting here. The wife is not the only one who has rights in a divorce suit. It was she who voluntarily brought it. If any confusion grows out of her illegal pleading, upon whom must the hardship rest? Upon the one who seeks relief from the burdens of a lawless decree, or upon the unmarried individual, of full age, who yet wants some one else to support her; who has sought exemption from the duties of a wife, and yet the retention of a wife's full financial privileges; who seeks it upon a decree obtained with- out notice, and from a man who may have a lawful wife and upon the question of property. The appellant might well have believed from the com- plaint that no such case was made. Decree reversed, so far as it purports to make disposition of, or concerning, property.'* Sanchez z/. Sanchez, 21 Fla. 346: " An order for alimony . . . where it does not appear by the record that the husband was duly notified, will be set aside as void." 1 Brooks V. Aubury, 7 Or. 464 ; Taylor v. Porter, 4 Hill, 146 ; Fisher v. McGin, i Gray, 32; Burr V. Burr, 7 Hill, 231 ; Dartmouth College v. Woodward, 4 Wheat. 519; Cooley on Const. Limitations, pp. 432, 437.