matrimony, at their discretion. (Collier v. Collier, 1 Dev. Eq. R. 152.)

These brief sketches, showing the sources of authority and the early practice in cases of divorce, are derived from the opinions of judges, who have taken the trouble to examine the records and bring out the history of the subject; and very likely other judges have taken a similar interest in other States, and the result of their examinations may be found in the published reports of the states; but it is not thought to be of sufficient importance to justify any further injury in this place. As has been before suggested, all of the states, with the exception of South Carolina, have a system of divorce, and, for causes more or less numerous, the marriage relation may be dissolved.

§ 670. It might be interesting to trace the history of opinion upon this subject of divorce, and the modifying effect which the changing conditions of society have produced in the opinions of good men in respect to the real nature and object of the marriage union, and the policy of a system which contemplates its dissolution in certain extreme cases during the lives of the parties; but it is not consistent with the plan of this work to occupy any considerable space with this matter. The prevailing opinion upon the subject at the present day may be summarily given: "The rendering of the contract of marriage indissoluble is running into the opposite extreme from that of permitting divorces at the pleasure of the parties. There are many persons who, on the idea that the marriage contract cannot be vacated for any misconduct, will not behave with the propriety they would if the continuance of the contract were dependent on their exertions to make themselves agreeable to the persons with whom they are connected. It is a great hardship that a person who has been unfortunate in forming a matrimonial connection must be forever precluded from any possibility of extricating himself from such a misfortune, and be shut out from enjoying the best pleasures of life. This consideration, instead of adding to the happiness of the connection, must frighten persons from entering into it. It is, therefore, the best policy to admit a dissolution of the contract when it is evident that the parties cannot derive from it the benefits for which it was instituted; and when, instead of being a source of the highest pleasure and most enduring felicity, it becomes the source of the deepest woe and misery." (1 Swift's System, 191.)

"The idea that, according to any just view, whenever parties have come together in marriage, they have thereby placed themselves so far in each other's power for life as to be incapable of freeing themselves by any act of the law, though the ends of their union are all frustrated, though one of them is unwilling to discharge the duties undertaken, though every hope of its ministering to the well-being of the parties is obliterated, surely can have place only in a perverted understanding. True, indeed, is it that this union is intended to be for life, that only in the most extreme circumstances should it be dissolved; but the very fact of its sacred nature, too sacred to be made matter of temporary arrangement, is the strong reason why, when it ceases to have any thing worthy to be called sacred about it, when an erring one has trampled it in the mud of his corruption by his polluted feet, the law should cease to call it sacred, and pronounce it profaned and dissolved. The idea of promoting in the community reverence for marriage by holding that to be marriage from which all disgusting things do flow, by receiving as too sacred to be molested the relation which breeds corruption in the souls of the parties, adulteries in the community, unnatural developments of wickedness in children, sorrow in the hearts of multitudes made by God to be happy, blasphemies in the temple of matrimonial purity, is too preposterous, too absurd, to be reasoned against; too monstrous to be credited as a fact of human legislation, did not testimony not to be rejected prove its existence." (1 Bishop on Marriage and Divorce, § 46.)

But there is a general concurrence of opinion at the present day that the objects of the matrimonial union are best subserved by a legal policy which provides, in certain aggravated cases, for its dissolution, although the opinions of men very naturally differ as to the extent to which the latitude of divorce should be carried. An opinion adverse to a divorce under any circumstances is an exception to the rule; and it is doubtful, even in South Carolina, whether the prevailing sentiment is not opposed to the policy. which forbids all divorces, although as yet no system of divorce has been inaugurated in that state. The divergency of opinion among thoughtful men is in respect to the facilities for obtaining a divorce, and not in respect to the propriety of granting divorces at all.

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CHAPTER XLII.

THE DIFFERENT KINDS OF DIVORCE THE DIVORCE FROM THE BONDS OF MATRIMONY-CAUSES FOR AN ABSOLUTE DIVORCE-THE DIVORCE FROM BED AND BOARD-GROUNDS OF SUCH DIVORCE.

8671. THERE are two kinds of divorce usually recognized in England and the United States: an absolute divorce from the bond of matrimony, or, in Latin, a divorce a vinculo matrimonii; and a divorce simply from bed and board, or, as the Latin expresses it, a divorce a mensa et thoro. The divorce a vinculo matrimonii is a complete dissolution of the bond of matrimony, and puts an end to the marriage relation. The divorce, a mensa et thoro, is not a dissolution of the marriage contract, but is a mere judicial separaration of the parties, while the matrimonial relation still continues to exist. In some of the states all divorces are absolute and completely terminate the marriage relation; and technically in England they have only the divorce from the bond of matrimony, though they have a judicial separation which has the same force and effect as a divorce a mensa et thoro. In a few of the states the divorce may be either absolute or limited, in the discretion of the court, or even at the election of the party applying for it, and sometimes for the same causes, and upon the same state of facts; and in one or two of the states the divorce a mensa et thoro is granted as a preliminary to the divorce a vinculo matrimonii. As a general rule, however, it may be affirmed that the character of the divorce is determined by statute, leaving no discretion in the tribunal before which the application is made. In those states where the statute authorizes the court to make the separation perpetual or only for a limited period, the courts always hold this is not an arbitrary discretion, but one which should be judiciously exercised. It was said in one case; "although a divorce a mensa et thoro may be allowed in some instances to a person who is not entirely impeccable, who may not have been exemplary in all the attentions and stipulated offices assumed in contracting this relation, yet the policy of the law, the interest of the offspring, the tranquillity and happiness of families in general, forbid the dissolution of marriage at the suit of a person to whom default in any of the essential duties of married life can be fairly imputed." (Whittington v. Whittington, 2 Dev. & Bat. R. 64. Vide also Rutledge v. Rutledge,

*

5 Sneed's R. 554. Buckholts v. Buckholts, 24 Geo. R. 238. Conant v. Conant, 10 Cal. R. 249.) In a case before the late court of chancery in the State of New York, in 1819, where, by the statute concerning divorces, the enlarged discretion was given the court, Chancellor Kent observed: "There is much embarrassment on the ground of policy and public morality, with these partial dissolutions of the matrimonial union. It is throwing the parties back upon society, in the undefined and dangerous characters of a wife without a husband, and a husband without a wife. There are objections to a separation for a precise or limited time, though such decrees have been rendered. It may inspire a constant fear on the one side, and nourish hopes of revenge on the other. It rather appears to me to be the most kind and salutary course to declare the separation perpetual, with a power, however, reserved to the parties to come together under the sanction of the court, whenever they shall find it to be their mutual and voluntary disposition." (Barrere v. Barrere, 4 Johns. Ch. R. 187, 191.) And in another case before the same learned chancellor, as early as 1815, wherein it appeared that the parties were young, and it was thought possible that a temporary separation would be sufficient for correction and admonition; the chancellor said: "I shall give them an opportunity at a distant period of re-entering into their duties, and of seeking for mutual consolation and happiness in conjugal life." (Bedell v. Bedell, 1 Johns. Ch. R. 604, 606.)

8 672. The divorce is sometimes granted by act of the legisla ture, and, in such cases, no rule can be stated in respect to the causes for which an absolute divorce will be granted. It is generally supposed that unless the fundamental law of the state expressly prohibits legislative divorces, the legislature may grant such divorces in its discretion, although a satisfactory reason is usually given for the divorce, in every case. But the subject of legislative divorces is at present of but little practical interest in the United States, from the fact that jurisdiction is generally given to the courts in all cases of divorce, and in many states constitutional provisions exist prohibiting such divorces. In fact, the courts have occasionally held in those states where there is no express inhibition, that such divorces are an infringement of the provisions of the federal constitution prohibiting the passage of any law impairing the obligation of contracts. In a case in the State of Florida, the supreme court of the state took this view.

Semmes, J, who delivered the opinion of the court, insisted that there was no good reason why this provision of the constitution should be restricted to contracts of a pecuniary nature, and not embrace that of marriage, saying that the contract of marriage was comprehended by the words of the constitution, and that there was no rule of construction that would exclude it, in the absence of any thing to show that it is not within its spirit. (Ponder v. Graham, 4 Flor. R. 23.) A similar opinion has been advanced in other cases, but the doctrine is not generally recognized as being sound, and yet the practice of dissolving the marriage relation by acts of the legislature is so little resorted to in the United States, that it is not thought necessary to refer to the discussions which have been had, and the doctrines declared in respect to that species of divorce.

§ 673. The causes for an absolute divorce are generally prescribed by statute, and there is a wide difference in the statutes of the several states upon the subject. The adultery of the party, however, is a ground of divorce a vinculo matrimonii in all, or nearly all, of the states; perhaps in all of the states, with the exception of South Carolina, where they have no divorces at all, either by the sentence of a court of justice, or by act of the legislature. Indeed no offense is regarded so repugnant to the marriage relation as that of adultery, and hence that is a cause for an absolute divorce in all countries where divorces are granted for any cause whatever. Adultery consists in the carnal connection of one of the married parties with any other person than him or her to whom he or she is married. The offense can be committed only by a married person, although the associate in the act may be either married or single. The law formerly treated adultery as an offense against society, but recently it is treated as an offense against the moral law, for which the offender is accountable to the injured party. The public sentiment is generally against treating it as a criminal offense, although in some of the states it is punishable by fine and imprisonment. In all countries the offense of incontinence by the man is differently considered from the same offense in the woman, although it is very difficult in principle to discover the distinction. In England, it is only the husband, ordinarily, that can have an absolute divorce for the incontinence of the wife, but in France and in all of the United States, the adultery of either party is a ground of absolute divorce, on the