[1065] Bishop, op. cit., I, §§ 115-37, where the authorities for each step in the argument are cited.

[1066] Ibid., §§ 119, 109. See Latour v. Teesdale, 8 Taunt., Eng. Com. Pleas Rep., 830; Rex v. Brampton, 10 East, King's Bench Rep., 282; Caterall v. Caterall, 1 Rob., Ec., 580, 581; and Lauderdale Peerage Case, 10 Law Reports, 744, 745.

[1067] On "parol separation" see Bishop, Mar., Div., and Sep., I, §§ 1203-52.

[1068] Hening, Stat., I, 303; V, 491.

[1069] This court was so called since 1662: Hening, Stat., II, 58; cf. Howard, Local Const. Hist., I, 390 ff.

[1070] June 16, 1691: Palmer, Calendar of Va. State Papers, I, 29.

[1071] Case of Purcell v. Purcell (1810), 4 Hen. and Munf., Reports, 506-19. "It is not commonly thus assumed that a court of equity will take jurisdiction of a subject simply because the common law tribunals do not."—Bishop, Mar., Div., and Sep., I, § 1398, note 5; Story, Equity Jurisprudence, § 62.

[1072] Tucker, Blackstone's Commentaries (1803), III, 94.

[1073] Case of Almond v. Almond (1823), 4 Rand., Rep., 662-68; also in 15 Am. Decisions, 781.

[1074] Bishop, op. cit., I, §§ 1394, 1395; following Fonblanque, Equity, 97, note. In Helms v. Franciscus, 12 Bland, 544 ff., it is taken for granted that the equity judges of the commonwealth assumed the jurisdiction in question as naturally coming to them; nothing is said of a statute conferring it.

[1075] The subject is worked out in detail by Bishop, op. cit., I, §§ 1383-1421.

[1076] Case of Galwith v. Galwith, 4 Harris and McHenry, Reports, 477, 478.

[1077] The act of 1639, engrossed but not finally approved, gave the so-called "county court" power in certain matrimonial causes belonging properly to ecclesiastical courts: but this tribunal was really the predecessor of the provincial court: Bozman, Hist. of Md., 106, 128, 129, 131, 604.

[1078] Macnamara's case, 2 Bland, 566, note: Bishop, op. cit., I, § 1396 n. 3.

[1079] Case of Farnshill v. Murray, 1 Bland, 479 ff.; 18 Am. Decisions, 344-50. Cf. the case of Utterton v. Tewsh, Ferguson's Reports of Consist. Court of Sc. (1811), 23.

[1080] That is, for cruelty and adultery: case of Helms v. Franciscus (1830), 2 Bland, 544 ff.; 20 Am. Decisions, 402 ff. Cf. the case of Wallingsford v. Wallingsford, 6 Har. and J., 485.

[1081] By the same act it is provided that "the general court may inquire into, hear and determine, either on indictment or petition of either of the parties, the validity of any marriage, and may declare any marriage, contrary to the table in this act [table of forbidden degrees] or any second marriage, the first subsisting, null and void," with appeal to the "court of appeals."—Laws of Md. (Annapolis, 1799), I, Feb., 1777, c. xii, par. xiv, xv.

[1082] Jamison v. Jamison, 4 Md. Ch., 289, 295. This case is thus more liberal than Helms v. Franciscus just cited.

[1083] Bishop, op. cit., I, § 1396. Cf. Hewitt v. Hewitt, 1 Bland, 101: Crane v. Meginnis, 1 Gill and J., 463, or 19 Am. Decisions, 237; Wright v. Wright's Lessee, 2 Md., 429, or 56 Am. Decisions, 723.

[1084] Case of Crane v. Meginnis, 1 Gill and J., 468; 19 Am. Decisions, 237-42. Cf. also Wright v. Wright's Lessee, 2 Md., 429, or 56 Am. Decisions, 723-33.

[1085] See chap. xvii, sec. ii.

[1086] Case of Head v. Head (1847), 2 Kelly, Georgia Reports, 191-211. Cf. on the same point, Finch v. Finch, 14 Ga., 362: and Brown v. Westbrook, 27 Ga., 102, which varies from the two other decisions.

[1087] See chap. xiv, above.

[1088] These three cases are in the New York Colonial MSS., 1630-1664: Dutch: Part First, VI, 49; VIII, 415, 417, 419; X, 291, 293. They were first brought to light by Cowley, Our Divorce Courts, 32, 33.

[1089] This was a case of alleged incest: O'Callaghan, Doc. Rel. to Col. Hist., N. Y., II, 704.

[1090] Case of desertion and adultery: N. Y. Col. MSS. (translation from the Dutch), XXIII, 248; also, with slightly different translation, in O'Callaghan, op. cit., II, 730.

[1091] Case of elopement with adultery, Dec. 15, 1661: Gerard, The Old Stadt Huys, 386, 387; also in O'Callaghan, op. cit., XII, 359, where we read: "This fine priest demanded with great circumstantiality in the above-mentioned meeting a decree of divorce on account of his wife's flight and received the same, subject to your Honors' approval, on the 15^th of December" (letter from Beeckman to Stuyvesant and others, dated at Altona, South River, Feb. 1, 1662).

[1092] Records of New Amsterdam, III, 73.

[1093] Ibid., 70. Cf. ibid., 370 (1661), for mention of a case of seduction.

[1094] At "ffort James in New Yorke the 24th day of October 1670."—Munsell, Annals of Albany, IV, 20.

[1095] Earle, Colonial Days in Old New York, 48.

[1096] For this case (July 11, 1665) see Valentine, Manual of the Corporation (1852), 486, 487, 489, 494.

Some further details are given in the Records of New Amsterdam, V, 262-65: "Lodowyck Pas, his wife and daughter (the wife of Arent Jurriaansen Lantsman), entering the aforesaid Lantsman's wife's request to be divorced from her husband, as she cannot keep house with him. Decreed to postpone the matter until the next court day when the said Lantsman is to be heard and the aforesaid Lodowyck Pas was allowed to retain his daughter with him during that time" (262). Then Beletje produces a remonstrance against being obliged to go to her husband (263). Lantsman next appears, and is ordered to produce his witnesses by next court day (264, 265). No further mention of the matter appears in these documents. Whether the proceedings just indicated were preliminary or after failure of arbitration is, of course, not clear; but the former seems more probable.

[1097] Earle, op. cit., 49.

[1098] New York Col. MSS., XXIII: Calendar of Hist. Man. (1664-1776), 26; cf. ibid., XXIII, 269, 390; XXV, 84, 85.

[1099] Earle, op. cit., 48, 49.

[1100] Ibid., 50.

[1101] Ibid.

[1102] Quoted from Earle, op. cit., 46, 47.

[1103] See Chancellor Kent, in Williamson v. Williamson, 1 Johnson, Chancery Rep., 488, 491, 492; and Chancellor Walworth's decisions in Wood v. Wood, 2 Paige, Chancery Rep., 108, 111; North v. North, 1 Barbour, Chancery Rep., 241, 245: 43 Am. Decisions, 778; and Burr v. Burr, 10 Paige, Chancery Rep., 20, 35. Cf. Bishop, Mar., Div., and Sep., I, §§ 132, 133, notes; and Story, Commentaries, I, 80, 81.

[1104] Bishop, op. cit., I, § 109.

[1105] Duke of Yorke's Book of Laws: in Linn, Charter and Laws, 63.

[1106] Kent, Commentaries, II, 97, 98.

[1107] Letter of Nov. 24, 1773: O'Callaghan, Doc. Rel. to Col. Hist., N. Y., VIII, 402; also in New Jersey Archives, X, 411, 412.

[1108] Colden, Letters on Smith's History of New York: in Coll. N. Y. Hist. Soc., Fund Series, I, 1868, 187.

[1109] New York Col. MSS., XXV, 84. Here is the document in full, though some phrases are hard to decipher:

"To the Right Honr^ble Maij Edmo^nd Andross, Gouev^nr Gen^ll of all his Highnes Territories in America:

"The Humble Petiton of Richard Wood:

"Humbly: Sheweth:

"That whereas your Honou^rs Petitioner haueing liue under his Highness Jurisdiction in Westchester about fifteen years, during w^ch time your petitioner hath endeauoured to demeane himselfe as a true and Loyall subject and serviceable in his generation, to the best of his power, but through the unchastity and disloyalty of y^e petitioners wife by name Mary Wood, sustained great detriment and endured a very troublesome and vexatious liueing to the Dishonour of God, and repugnant to the holy bond of wedlock, she haueing as much as in her lay endeauoured the totall ruine and destruction of your petitioner, by her most abominable words and actions, haueing openly confessed she hath defiled her marriage bedd, and that purposely to breed difference between your petitioner and her selfe, notwithstanding y^e petitioner endeauoured to reclaime her, by all means lawfull, who yet continued the same and rather worse, and now purposely absented her selfe by reason she knows her selfe guilty and to prevent that shame and punishment due to her base and wicked actions....

"Y^r Petitioner humbly beggs your Hon^rs would bee pleased to take your petitioners sad case into consideration, and if it shall seem good in your Hon^rs sight a separation may be made, otherwise noe [illegible] can be expected but a sad euent of such deplorable doings.

"and y^e Petitioner shall for
Euer Pray as in Duty bound."

[1110] Linn, Charter and Laws, 109, 110. This provision was abrogated by William and Mary, 1693, but re-enacted the same year: ibid., 110, note, 194 (the re-enacted law).

By the Dutch code fornicators, if single, are to marry or pay a heavy fine; O'Callaghan, Ordinances, 495. Under the duke of York the penalty is marriage, fine, or corporal punishment, in the discretion of the court: Duke of Yorke's Book of Laws: in Linn, Charter and Laws, 27. The New Jersey laws of "Carteret's time" (ca. 1675) contain the same provisions: Leaming and Spicer, Grants, 107; and the Pennsylvania statutes authorize the county court to impose "all or anie" of these three penalties: Linn, op. cit., 145, 210; Bioren, Laws, I, 2, c. 3.

[1111] For incest the guilty person "shall forfeit one-half of his estate, and both suffer imprisonment a whole year, in the house of Correction, at hard labour, and for the second offence, imprisonment in manner aforesaid during life."—Linn, op. cit., 110; abrogated and re-enacted in 1693: ibid., 194; and a similar law was passed in 1700: Bioren, Laws, I, 2, 6.

[1112] For bigamy, according to the Great Law, whosoever shall be "Convicted of having two wives or two husbands, att one and the same time shall be imprisoned all their Lifetime in the House of Correction, at hard labour, to the behoof of the former wife and children, or the former husband and children." When one of the persons is single and the other married, the penalty is the same: Linn, op. cit., 110, 111; abrogated and re-enacted in 1693: ibid., 194; and again in substance re-enacted in 1700: Bioren, Laws, I, 2, 6.

[1113] Gordon, Hist. of Pa., 557. But Gordon (op. cit., 70) is in error when he states that by the Great Law divorce was sanctioned after a "second" offense; and regarding this law some other mistakes occur.

[1114] Pa. Col. Rec., IX, 564, 566, 567, 568, 580.

[1115] Ibid., X, 26, 42, 104, 105.

[1116] Ibid., 40, 53, 54, 55, 104, 105.

[1117] Laws of the Com. of Mass., 1780-1816, I, 321.

[1118] Act of Feb. 12, 1821: Laws of the Com. of Mass. (1821), 507. This somewhat extends the provisions of the act of Feb. 20, 1818: ibid. (1818), 550.

[1119] Act of April 1, 1834: Laws of the Com. of Mass. (1834), 252-57.

[1120] Pub. Stat. (1882), 811. The law has remained substantially the same since 1835: see Rev. Stat. (1836), 477; Supp. to Gen. Stat., 1860-1872, I, 540.

[1121] Acts and Resolves of Mass. (1899), 379.

[1122] Act of April 22, 1896: Acts and Resolves, 257. This statute further declares that "no rabbi of the Israelitish faith shall solemnize marriage until he has filed with the clerk or registrar of the town or city where he resides a certificate of the establishment of the synagogue of which he is rabbi, and of the date of his appointment thereto, and of the term of his engagement."—Ibid., 257. Cf. Rev. Laws (1902), II, 1349-50, with somewhat different wording.

[1123] Also the wardens of the town of New Shoreham: Pub. Statutes (1882), 416; Gen. Laws (1896), 621. The justice has power in any town of the state.

[1124] Pub. Laws of R. I. (1798), 481-83; ibid. (1844), 267. By this date the justice of the peace had ceased to act.

[1125] Revised Stat. (1849), 273; Stat. of the State of Conn. (1854), 374, 375; Gen. Stat. (1875), 186; ibid. (1887), 609; ibid. (1902), 1086.

[1126] Slade, State Papers, 292, 484. Cf. Laws of the State of Vermont (1798), 330.

[1127] Act of Feb. 15, 1791: Laws of the State of N. H. (1797), 295, 296.

[1128] Cf. Const. and Laws (1805), 296; Laws of the State (1815), 350, 351; ibid. (1830) 172-74.

[1129] Laws of N. H. (1833), 88.

[1130] Gen. Laws (1878), 428; Pub. Stat. (1891), 494; ibid. (1900), 589.

[1131] Pub. Laws (1798), 481-83; same provision, ibid. (1822), 371.

[1132] Ibid. (1844), 267.

[1133] Gen. Laws (1896), 621. Cf. Pub. Stat. (1882), 416.

[1134] Laws of the State of Maine (1821), I, 341.

[1135] Public Acts (1828), 1157, 1158; Laws of the State of Maine (1831), III, 238-40.

[1136] Revised Statutes of Maine (1884), 516, 517. This provision has long existed: see Acts and Resolves (1876), chap. 110, sec. 2, pp. 78, 79; Revised Stat. (1871), 485; ibid. (1857), 391. Cf. Wright, Report, 53.

[1137] Acts and Resolves (1875), chap. 56, p. 44; Revised Stat. (1884), 517. Cf. 62 Maine Reports, 596.

[1138] Slade, State Papers, 292, 484.

[1139] Laws of the State of Vt. (1798), 330.

[1140] Act of Nov. 7, 1800: Laws of the State of Vt. (1808), I, 268.

[1141] Ibid., 269.

[1142] Ibid., 272, 273.

[1143] Revised Stat. of 1839 (1840), 319.

[1144] Vermont Stat. (1894), 500.

[1145] Acts and Laws (1784), 130.

[1146] Pub. Stat. Laws (1821), 316; the same provision, ibid. (1835), 370.

[1147] Pub. Acts (1847), 39.

[1148] Gen. Stat. (1866), 301, note, giving a summary of changes in the law since 1640. Cf. Gen. Stat. (1874), 186; ibid. (1887), 609; ibid. (1902), 1086. See 1 Root, 381; 4 Conn. Reports, 134, 209.

[1149] Gen. Stat. (1887), 609.

[1150] Pub. Stat. of Mass. (1882), 811; Pub. Stat. of N. H. (1891), 494; Gen. Stat. of N. H. (1867), 331; Gen. Laws of R. I. (1896), 622; Vermont Stat. (1894), 500; Revised Stat. of Maine (1884), 516.

[1151] Two witnesses, besides the person solemnizing the marriage, must attend: Gen. Laws of R. I. (1896), 624; Acts and Resolves (1899), 50, 51.

[1152] Pub. Stat. (1900), 590; Gen. Stat. (1867), 332.

[1153] In Massachusetts the penalty is a fine not exceeding $500, or imprisonment in jail or in the house of correction for a term not exceeding one year, or both: Act of April 22, 1896: Acts and Resolves (1896), 257; in Maine it is $1,000, or not less than five years' imprisonment: Rev. Stat. (1884), 517; in New Hampshire it is not exceeding $300, one-half to the complainant: Pub. Stat. (1891), 494; Gen. Laws (1878), 429; in Vermont, not less than six months' imprisonment or a fine of from $100 to $300; in Connecticut, not to exceed $500, or six months' imprisonment: Gen. Stat. (1887), 348; in Rhode Island the fine is $500: Gen. Laws (1896), 625.

[1154] Pub. Stat. of Mass. (1882), 811; Revised Stat. of Maine (1884), 517; Pub. Stat. of N. H. (1891), 494; Vermont Stat. (1894), 502; Gen. Laws of R. I. (1896), 625.

[1155] Pub. Stat. of Mass. (1882), 811; Rev. Laws of Mass. (1902), II, 1351; Rev. Stat. of Maine (1884), 517; Pub. Stat. of N. H. (1891), 494; Gen. Laws of R. I. (1896), 625.

[1156] For a digest or tabulation of the statutes of all the states and territories relating to definition, age of consent to marriage, age below which parental consent is required, prohibited degrees, void, voidable, and forbidden marriages, as the law stood in 1887, see Wright, Report, 28-45.

[1157] See chap, xviii, sec. i, b), for some account of the laws governing the "age of consent."

[1158] Pub. Stat. of N. H. (1900), 588.

[1159] Written consent is requisite in Connecticut, Maine, Rhode Island, and Vermont; but it may be either written or verbal in Massachusetts; and in all cases the consent is preliminary to issuance of license: Pub. Stat. of Mass. (1882), 810; Rev. Stat. of Maine (1884), 516; Vermont Stat. (1894), 501; Gen. Stat. of Conn. (1887), 608, 609; ibid. (1902), 1085; Gen. Laws of R. I. (1896), 623; and Acts and Resolves (1899), 49.

[1160] Pub. Acts of Conn. (1895), 474.

[1161] Act of May 18, 1894: Acts and Resolves (1894), 453, 454. See also the provision referred to below, relating to the clandestine marriage of a girl of sixteen secured by abduction.

[1162] Acts and Resolves of Mass. (1899), 160; cf. Revised Laws (1902), II, 1347-49.

[1163] Swift, System of the Laws of Conn. (1795), I, 186, 187.

[1164] Pub. Stat. (1900), 588. Cf. Wright, Report, 34.

[1165] Acts and Laws (1750), 144.

[1166] Pub. Stat. Laws (1808), I, 478, 479 n. 4.

[1167] The law forbidding such unions was repealed in May, 1816: Pub. Stat. Laws (1816), 261.

[1168] In Vermont, Connecticut, and Rhode Island such unions are void; in the other three states they are both void and incestuous; but in Vermont and Massachusetts they are void only when solemnized in the state; while in all the issue is illegitimate: Pub. Stat. of N. H. (1891), 493; Pub. Stat. of Mass. (1882), 808, 809, 1166; Gen. Laws of R. I. (1896), 621, 1000; Vermont Stat. (1894), 500, 505; Gen. Stat. of Conn. (1902), 1085; Rev. Stat. of Maine (1884), 520, 903.

[1169] In Rhode Island marriage or carnal connection between persons so related is punishable by imprisonment of from five to twenty years: Gen. Laws (1896), 1001; in Connecticut, by two to five years' imprisonment: Gen. Stat. (1887), 343; in New Hampshire, by a fine of not exceeding $500 or imprisonment not exceeding three years: Pub. Stat. (1891), 728; in Massachusetts, by confinement in state's prison not exceeding twenty years, or in jail not exceeding three years: Pub. Stat. (1882), 1166; in Maine, one to ten years' imprisonment: Rev. Stat. (1884), 903; in Vermont, confinement in state's prison not more than five years or a fine of not more than one thousand dollars or both: Vermont Stat. (1894), 902, 903.

[1170] Pub. Stat. Laws (1808), 478, 479 n. 4. See chap, xii, sec. iv.

[1171] For adultery the Massachusetts statute prescribed the gallows, whipping, and the scarlet badge; Act of Feb. 17, 1785; Laws of the Com. of Mass., 1780-1816, I, 217; and the gallows with fine, whipping, or imprisonment appears in the early New Hampshire laws: Laws of the State (1794), 294, 295, 285.

[1172] So by implication in Maine: Wright, Report, 39 n. k. Cf. Vermont Stat. (1894), 506 (voidable); Pub. Stat. of Mass. (1882), 809.

[1173] Rev. Stat. of Maine (1884), 515; Vermont Stat. (1894), 506 (voidable); Pub. Stat. of Mass. (1882), 809; Gen. Laws of R. I. (1896), 621.

[1174] Vermont Stat. (1894), 506, 507 (voidable).

[1175] Pub. Stat. of N. H. (1891), 495; ibid. (1900), 590; Gen. Laws of R. I. (1896), 621; Vermont Stat. (1894), 505; Rev. Stat. of Me. (1884), 515; Pub. Stat. of Mass. (1882), 809.

[1176] Such unions were void without process in Maine: Rev. Stat. (1847), 364; ibid. (1857), 396. They are so now by implication: Wright, Report, 39 n. k.

[1177] So in Rhode Island as late, at any rate, as 1844: Pub. Laws (1844), 268.

[1178] There are copies of three of these reports in the library of Harvard University, one marked "Mass. General Court, No. 46;" a second marked "No. 7, 1841;" and a House report marked "No. 28, 1839." For the repeal, see Acts and Resolves (1843), 40; Supp. to Rev. Stat., 1836-1853, 248.