Year: 1872




tence of court may. The legislature.
therefore cannot, in its Divorce Act, di-
vest the husband of vested rights of
property and bestow them on his wife"
The author might have added. that such
an Act could not divest the wife of vest
ed rights, and bestow them upon sec
ond wife.


But the Kentucky case is not nearly
so strong as the case in hand. Here,
there is no claim to dover. or to any
portion of the husbands estate. The
claim is to an estate granted in present,
on the Sd of April, 1852; an estate in
fee simple; an estate which vested " at
the date of settlement" and which Ly-
dia then took by virtue of her wife
Ship" an estate which would have
descended to her heirs had she died on
Dec. 22d, 1852, instead of having been
divorced by legislative act an estate,
in the language of the Donation Act, ''in
her own right" an estate as definite and
certain to her half of the claim, as was
the husbands to his half ) an estate
which could have been in no way divest-
ed save by failure on the part of Dav-
id S. Maynard to reside and cultivate for
four consecutive years, or by Lydia's
own act an estate arising out of gran
by the Sovereign present estate, dedi
etconcessi, and not resting alone upon the
rinculum of marriage, as an estate by
dover, would: an estate that could not
be transferred by legislative or judi
cial divorce, to a second wife, nor de-
feated absolutely by either mode.


The Oregon Act was procured without
the consent of the divorced wife, who
was at tie time at the old home in Ohio.
No notice of any kind was given her; no
knowledge of the thing communicated
to her by any one. The Act recited no
reason for divorce ; it was an arbitrary
severance of the conjugal tie-a marri-
age that had been existing for twenty
four years. 1t was based on no known
principal of ethics or law. It was for
no cause; but was distinctly a reckless,
shameless exercise of doubtful legisla
tive power.


The Act was procured in order to
the marriage with Catharine t,oeaty.fou
days afterwards, and the design was
sought to be further consummated by
substituting Catharine to the property
rights of the divorced wife. The con-
clusion is palpable one, that the Act
was procured with this intent, and the
case is much stronger than the one in
Kentucky, for here the attempt is to
divest the separate estate of the first
wife and give it to the second.
Nor does it in any way affect Lydlas,
right that her husband might have de-
feated it by a failure to comply with
the conditions of the grant. He did
comply, and complying made the estate
which was Lydia's at the date of settle
ment in Der own right an absolute
estate. As the legislative divorce
could in no way, affect her property
rights, every day of the expiring
four years of settlement strengthened
the estate of the abandoned wife
the wife put away to make room for
another.


"The mills of God grind slowly, but
they grind exceeding small"
The estate of the wife Lydia is as
perfect to-day, after the lapse of twenty
years as it was on April Sd 1852. No
legislature could take it away by either
direct act, or by an ex-parte divorce, or
any divorce.


No taking of her property could be
had for even public use, without COM
pensation.


| No Court has taken It.


How then has it been divested


Can it be said that the wifeship of
Lydia could be used on April Sd, 1852,
in order to take GAO acres of land, and
then in December following, that wife
ship repudiated, with the design of in
vesting second wife with the property
rights of the first !?


Such proposition is too monstrous
fcfe> en- the Attorneys who resist Ly-
dia's claim. No one is bold enough to
claim that Catharine can take.
We conclude therefore that the legis-
tive act of divorce left all property rights
precisely rs they were, or would have
been, had no such act been passed.


III. RESIDENCE UPON THE LAND BY
THE WIFE IS NOWHERE REQUIRED BY ETH
Err THE TERMS OR SPIRIT OF THE DoNA-
TON ACT.


It is contended that Lydia never re-
sided upon the land.


Conceded. Conceded further that
she never was inside the limits of WASH
inpton Territory until the 9Th of March.
1S72-twenty years, nearly. after the
date of settlement.


Well, what of it


1t is answered that the wife must re-
side upon the land. That anyhow she
must be wife of the settler during the