cept by papal authority, though marriages contrary to St. Paul's rule, that is, a Christian married to an unbeliever, the marriage might be declared null ab initio. These narrow grounds were not generally acquiesced in by the European Catholic States. The rule adopted by the Council of Trent in 1562 A. D. declared the marriage tie indissoluble even after the commission of adultery by one of the parties. But the Protestant Reformation caused this rule to be disregarded in Protestant States. In civil governments where the common law prevails, three kinds of divorce are recognized by courts of competent jurisdiction, as follows:

1. By a decree of nullification ab initio on grounds of consanguinity, previous marriage of one of the parties whose bond remains, mental or physical incapacity, coercion, and for fraud. 2. By decree a mensa et thoro, from bed and board. 3. By decree a vinculo matrimonii, from tht bond of marriage. In Great Britain the law of divorce was for a long time administered by an ecclesiastical court, which constituted a part of the ecclesiastical law of the realm. But the act of the 20th and 21st Vic., ch. 85, of 1857, deprived these courts of that jurisdiction, transferring it to a new court entitled, "The Court for Divorce and Matrimonial Causes." A subsequent act the same year took from the ecclesiastical court its jurisdiction over testamentary causes, and gave it to a new court. (See Bish. M. & D. Sec's 30 & 65).

In administering the law of divorce in the United States, it should be borne in mind that the matrimonial and divorce laws of Great Britain entered into the common law, and from thence was imported into the States of the Union except Louisiana and California, where the civil law was adopted. Soon after the admission of California into the Union she exchanged it for the common law. The bed rock of the common law came from Manu and traveled down through India, Egypt and Greece to Rome, where commissioners appointed by Justinian codified it into the civil law; and Great Britain reformed it, and entitled it the common law; and our forefathers brought it with them to this country and it became the bed-rock of the common law of the United States and Territor

ies. As matrimonial courts were never an integral part of the judicial system of the United States, it was necessary to supply the hiatus by statutory law before actions of divorce could be entertained; but a contract of marriage could, as now, be annulled by a court of superior equitable original jurisdiction for fraud, etc., as before stated. But for a violation of the marital vow nearly all of the original states reserved to their several legislatures sole jurisdiction. South Carolina, however, omitted to provide any legal proceeding for divorce, hence, her supreme court reports are almost barren of divorce proceedings.

Since the early times of our nationality, great changes have been made in the statutory laws of the several States, differing from each other, especially upon the question of divorce. All now include Bible or New Testament causes; and some include habitual drunkeness, cruel treatment, refusal of support, abandonment, conviction of a felony, etc.; and hence some of the States have statutory provisions in regard to qualifications for marriage and modes of procedure, and they do not agree in their requirements of fitness and modes of consummation of marriage. These differences are prolific sources of judicial conflicts in some of the States, especially as to the validity of decrees of divorce in sister States on statutory causes, which their State law does not provide. Massachusetts and other States in violation of Sec. I. of Art. IV. of the Constitution of the United States, which provides that "Full faith and credit shall be given, in each State, to the public acts, records and judicial proceedings of every other State," have denied this full faith and credit, etc. The Supreme Court of the United States, on appeal of one of such cases, has given full force to this constitutional provision. But recently, a Massachusetts court, in the face of this decision, held the decree of divorce in a sister State invalid, because the statutory cause on which it was granted, was not a statutory cause in Massachusetts. These conflicts suggest an amendment to the Constitution of the United States, vesting in the United States jurisdiction over matters of marriage and divorce.

Lord Robertson, a Scotch judge, held that marriage is a

contract sui generis-of its own kind, and that the status of marriage is juris gentium-by the law of marriage, resting upon the consent of parties; but not regulated wholly by the agreement of parties, it being subject to municipal regulation over which the parties have no control, hence it is distinguished from all other or ordinary contracts; therefore, the rules of law applying to all other contracts may not apply to this. For this confers legitimacy on children, regulates relations of consanguinity, and enters into, and pervades the family and social systems of society and of civil government. (See Story Conflict, secs. 108, 109, 111, 1 Bish., M. & D., sec. 6; Mcguire v. same, 7 Dana 181; Ditson v. same, 4 R. I., 87, 101-2). When a statute provides causes for divorce without designating a forum of jurisdiction it must be exercised by a superior court of original jurisdiction, according to the law of the State. "This view," says Mr. Bishop, "though opposed apparently by some cases which, to the casual eye, are adverse, is substantially borne out by other and direct adjudications which may be deemed to have settled the law as thus stated." (ib. sec. 71). In England, the ecclesiastical courts, which, for a long time administered the laws of marriage and divorce, were held to be a branch of the common law: and it has been in like manner so determined by the courts of the several States, though this branch of the common law in the States never had ecclesiastical courts. (ib. sec. 57, 68.)

Chancellor Kent held, in the case of Williamson v. Same (1 Jhn. ch. 488), that, "the general rules of English jurisprudence on this subject must be held as applicable, under the regulations of the statute, to this newly acquired branch of equity jurisdiction, and when the legislature conferred on the courts the power to grant divorces, it intended that those settled principles of law and equity, on this subject, which may be considered as a branch of the common law, should be adopted and applied." He also held in the case of Barrere, (ib. 187), that, "in the United States the common law of England was a supplemental part of the law, (of New York) and was a brief, chaste and rational code and contrasted favorably with the common law of the Roman Catholic countries."

The all-controlling power of the common law was, in a striking manner, recognized by the courts in Massachusetts and Wisconsin when their statutes invaded the common law in the matters of marriage and divorce, by construing them by the rules of the common law, and so giving their statutes, in fact, a different meaning than the words of the Acts seemed to indicate and for the reason, that, thereby, the inherent rights of persons under the common law were infringed. (Middleburgh v. Rochester, 12 Mass., 363-5: 1 Bish., M. & D., secs. 9 to 95.)

The maxim expressio unius est exclusio alterius, does not apply in such case, and only applies where the statute establishes something new in the law, without violating inherent rights, and does not apply when the statute was made as a modifying adjunct of the common law. But if the statute covers the whole ground of the common law with new substantive provisions and modes of procedure, it then would operate as a repeal or displacement of the common law; and in that case, the new substantive statute and new mode of procedure would regulate the mode of marriage and divorce. Statutes, however, rarely cover the whole ground of the common law, therefore, the common law rules usually prevail to their full extent, though the new statute affirms them only in part. To the great annoyance of the people, the statutes in the several states for many years upon marriage and divorce and other matters have been in a state of flux, and especially upon the rights and privileges of women. During woman's forced debasement in all the centuries past, she has exercised a wonderful-a marvelous power over man in all his walks and duties of life; but if her rights and privileges were awarded to her on principles of exact justice, her power over him would be, as it ought to be, vastly greater and wiser, and, therefore, the good of families, of society and the State demands the recognition of her full enfranchisement in all the States and Territories. In fact, the contract and status of mariage, in principle, involves absolutely the mutuality of rights and privileges between the parties on principles of equality and justice.

The effects of divorce a vinculo matrimonii differ in the sev

eral States. In most of the original States, the divorced, or guilty party, is inhibited from marrying again, and forfeits the right of dower or of curtesy as the case may be. In Illinois and some of the other States, after the decree of divorce, both parties thereto are permitted the right of marriage again.

Property belonging to a woman before marriage, and that which she may lawfully acquire after marriage, remains hers after a decree of divorce, unless by her consent or acquiescence, it is merged with that of her husband in such a manner as to be indistinguishable from his. (See U. S. reports, James Sykes v. Eleanor Chadwick.) This rule, as it stands should be modified, for it is manifestly partial, if not unjust. To be in any wise equitable, it should be reformed at least in such a manner as to apply to the property of the husband when merged with his consent or acquiescence with that of his wife. The false standard of the rights of woman as compared with those of man has been so long upheld by common custom, that the keenest intellects, though meaning exact justice, have unwittingly overlooked the many frauds that have obtained, and have been practiced upon women in their relations as wives and citizens under the law.

C. M. Hawley.