Year: 1871

Ia % 0sCuS SACCps W say that Ale
phrase 'cruel treatment" which
constitutes the -four tn cause, has
been SO literally construed in IA
vor Of applicants for divorces by
some of our courts as to render
necessary, in my judgment a re-.
turn to the more positive language
Of the statute Of ls43, which re
quired the treatm ent to be .'craei
and inhuman." The great objection
to our statute is. however, thesdis5
cretionary clause already quoted,
allowing court to grant divorce
for any cause that the Judge may
deem sufficient.


This clause, which prctends to
lay down a rule for the government
of human affairs in the most i'm
portant relations Of life, is at. war
with the fundamental idea and
elementary definition of law Law
is aprescribed rule of civil conduct.
This statue prescribes no rule, the
observance Of which shall save.
or the violation Of which shall
forfeit ccnjugal rights, Under this
clause the question, what is or is
not sufficient cause for q divorce,
instead of being determined by
general rule, is measured by no
rule at all, and the standard of
judgment,instead Of being prescri.
bed SO that it may be known and
read of all men, remains locked up
in the mind of the Judge until he
pronounces judgement between the
parties in the case before him. 1t
is worse than delegating legislative
powers to the judiciary which the
Constitution expressly prohibits
for it authorizes the Judge to make
his own judgment of what the law
ought to be the rule of decision in
each case, as it arises, without any
previous intimation Of the stand
ard or rule by which the rights Of
the parties are to be measured
The Constitution prohibits special
Legislation on the subject of gran
ting divorces, but under this dis
cretionary clause causes OF divorce
vary in the several judicial circuits
and distric with tie diversified
mental and moral peculiarities Of
the Judges. Objectionable as the
statute is which requisites the eau
ses for which divorces may be
granted, the law governing the
practice in divorce cases is worse.


The facility with which citizens
Of other States, after pretended
residence in this, can and do pro-
cure divorces in our courts, and
then return to the homes, from
which they fled for that very pur-
pose, is a reproach to the civiliza-
tion o. the age, and breach of
that comfy which should be scru-
pulousiy observed between sister
States Of the same great republi-
can family. Under the present
statute, a divorce may be obtained
in this State, when both the plain :
t;ff and the defendant, at the time
of the rendition of the decree. are
resident citizens of another State
True, the applicants must have
been resident of the county in
which be commences suit at the
date Of the filing Of his petition,
and he must have been a resident
of the State for one year prior To
that time, but the year having e.
lapsed, and the petition, being
filed, his residence may then cease,
he may return to the State ftom
which he came, and his application
for a divorce will be none the less
successful by reason Of his depar-
ture Such statute must be
highly appreciated by divorce see
kers from other States, who can
not afford to keep up the appear
ance of a residence in this for more
than one year, but it is not calcu
lated to give citizens OF Indiana 9
very exalted idea of the righteous


ness or wisdom of the Legislation
of their own State. Even per-
manent residents of our own State
who apply for divorces, are favored
by our practice above plaintiffs il


other actions. The defendant il


every other action purely person


al, if a resident of the State, mus


be sued in the county OF his resi-


dence; but la divorce cases the ap


plicant has the right to sue in th


county in which he resides, and h


can change his residence to attain


success abroad, when failure woult
1 be certain at home. '4 s'A


l therefore recommend that tn


clause of the statute which author


ICES divorces for any cause tha


the Court may deem sufficient, b


repealed, and that the clause ma


king cruel treatment q gooi caus


Of divorce be 30 amended as t


require the treatment to be crue


and inhuman, or inhuman and bar


barous further recommens


that the practice in divorce case


be go amended as to embrac
the following provisions, viz:


First. Requiring the defendant, when


resident OF the State, be sued in the countr


of his or her residence :aG1
Second. Requiring TIE plaintiff not on


to have been resident of the State for o,


year prior 70 the filing Of his petition, b,


that he should continue to reside in the Sta


during Il, presidency of the sui. and unt
the case is tried.


Third. Vesting in the Circuit Courts e,
r al iurtsNtcti,,p sv, s.. 4