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The statute of 1786 is reactionary with respect to the grounds of divorce. It is expressly declared that no divorce from the bond of matrimony, in the proper sense of the word, shall be allowed except for impotency or adultery in either of the parties. But in the outset it is necessary to be on one's guard against a confusion of terms caused by a retention of canonical usage. In this act, and for many years in the statutes of Massachusetts, as in those of some of the other states, the sentence of nullity of void or voidable wedlock, on the usual grounds of forbidden degrees, bigamy, or the like, is called "divorce."[5] For the first time in the revision of 1835 such unions, if solemnized within the state, are declared to be "absolutely void, without any decree of divorce, or other legal process;"[6] and this is typical of the tendency in other states[7] to adopt what is now the prevailing usage.[8]

The act under discussion was conservative in another important respect. Divorce from bed and board, which had crept into the judicial practice toward the close of the provincial era, was now allowed either partner by statute on the one ground of "extreme cruelty." Two new causes were added twenty-five years later. By the act of 1786, it will be observed, desertion and long absence, admitted during the earlier period as sufficient causes for dissolving the marriage bond, are not mentioned for either kind of divorce.[9] But in 1811 it was enacted that the wife may be divorced a mensa et thoro, whenever the husband "shall utterly desert" her, or whenever, "being of sufficient ability thereto," he shall "wantonly and cruelly neglect or refuse to provide suitable maintenance for her."[10] In all cases of separation from bed and board, as provided in 1829, the court may assign the wife all the personal estate which the husband received through the marriage, or such part of it as may seem just under the circumstances; while "all promissory notes and other choses in action" belonging to her before the marriage, or made payable during the coverture to her alone, or jointly with the husband on account of property belonging to her or debts due to her before the marriage, and all legacies to her, and personal property, which may have descended to her, as heir, or be held for her in trust, or in any other way appertaining to her in her own right, none of which things enumerated have been reduced to possession by the husband before the libel was filed, shall be and remain her separate property; and she is empowered to bring suit to recover it "in the same manner as if she were a feme sole."[11] No further important change[12] in the law appears to have been made before 1870, when divorce from bed and board was abolished.[13]

Chief interest, therefore, centers in the history of divorce from the bond of wedlock. To the two grounds of dissolution originally permitted new causes were added from time to time. Thus in 1835 the confinement of either spouse at hard labor under penal sentence for a period of seven years or more is declared sufficient for such a divorce; and a pardon granted to the guilty person will not work a restoration of conjugal rights.[14] Utter and wilful desertion for a term of five years came next in 1838;[15] and in 1850 a fifth cause, probably relating to the Shakers, was added. If either partner, it is declared, shall leave the other without consent and join a "religious sect or society that believes, or professes to believe, the relation between husband and wife void or unlawful," and there remain for three years, such act shall be deemed in behalf of the injured person a "sufficient cause of divorce from the bond of matrimony."[16]

A measure of fundamental importance makes its appearance in 1867. By it the divorce system of Massachusetts is completely reorganized. Not only is the way opened for presently doing away with separation from bed and board, but provision is made for suspending final action in any suit for dissolution of marriage by a device similar to that adopted in the English statute of 1860. The distinction between the "decree nisi" and the "decree absolute" was then introduced. "Decrees for divorce from the bond of matrimony may in the first instance be decrees nisi, to become absolute after the expiration of such time, not being less than six months from the entry thereof, as the court shall, by general or special orders, direct. At the expiration of the time assigned, on motion of the party in whose favor the decree was rendered, which motion may be entertained by any judge in term or vacation, the decree shall be made absolute, if the party moving shall have complied with the orders of the court, and no sufficient cause to the contrary shall appear." The orders of the court referred to require the person in whose favor a decree nisi has been rendered to publish at his own cost, in one or more newspapers, designated by the court, the fact of granting of the decree together with its terms and such other notice as the court may direct.[17] It will be observed that there is no express provision for "intervention," as in England by a private citizen or the Queen's proctor.[18] The institution of the decree nisi gave the legislator thereafter a great deal