On May 22, 1661, "in the case of Rachell Langton, or Verney, the Court judgeth it meete to declare, that she is free from hir late husband, Joseph Langton." 4 Records of Mass. (Part II) 8.

On November 12, 1659, the general court made the following order:

"In ansr to ye peticon of George Halsall, humbly desiring that Jane, his wife, lately divorced from him by the Court of Asistants, 1656, may be retourned to him, &c. the Court, on a hearing of the matter contejned in his petition, and duly considering of all the evidences by both partjes produced in the case, doe order, that the judgment of the sajd Court of Asistants in refference thereto be voyd, and that the sajd George Halsall shall haue and enjoy the sajd Joane Halsal, his wife, againe.” 4 Records of Mass. (Part I) 401.

The statute at this time certainly vested the jurisdiction over divorces in the court of assistants. It will be seen, therefore, that the general court upon a new proceeding overthrew the jurisdiction of the proper court, set aside a divorce regularly granted by that tribunal, and remarried a divorced couple by decree against the will of one of the parties.

On October 21, 1863, the general court made the following decree :

"In ansr to the petition of Margaret Bennet, in behalf of Mary White, hir daughter, humbly desiring to be sett free from Eljas White, hir husband, for his deficjency, &c, in hir peticon & by wittnesses therein exprest & prooved, the Court judgeth it not meete to graunt hir request." 4 Records of Mass. (Part II) 91.

Again: On October 12, 1670, the general court made the following decree :

"In ansr to the petition of Elizabeth Steevens, wife of Henry Steevens, it appearing to the Court that the sajd Henry Steevens hath deserted his wife & held vnlawful familiarity wth another woman, this Court judgeth it meete to declare, that the petitioner marrying any other man shall not be indangered thereby as a transgressour of our lawes." 4 Records of Mass. (Part II) 465.

These illustrations show beyond any reasonable doubt that

the practice of the Bible commonwealths was, to put it mildly, as liberal in matters of divorce as that of New Hampshire since the Revolution. When they decreed divorces from the bond of matrimony instead of from bed and board, they restored the law as it existed in Great Britain prior to the decree of the star chamber in 1601. Divorces dropped in the Bay colony with the new charter and the advent of Andros in 1686. By the act of August 22, 1695, such causes were to be "heard and determined by the Governor and Council." This tribunal dragged on until as late as Feb. 9, 1760, without a seal, without rules, without formalities, and even without records, except those in which executive acts, proceedings, and the like were recorded together. After that something like order and system prevailed until the Revolution. By chapter 69 of the act of 1785, jurisdiction in such matters was conferred upon the highest court of the commonwealth, where it has ever since remained.

We have already seen that the wife of Stephen Bachiller, formerly of Hampton, had obtained a divorce from him, when the Bay colony exercised jurisdiction over New Hampshire and Maine. The Cutt commission certainly did not in terms make the governor and council here a divorce court, and probably nothing was further from the intention of the crown. It is questionable whether Mrs. Colcord, to whom reference has been made, was not the first applicant for divorce under the province.

Sarah Pearce, in her libel of December 6, 1681, recites that she was "encouraged by your pious favor to Mrs. Colcord." Unless Mrs. Colcord was the first applicant under the provincial government, Sarah Pearce was. She was an heiress. Her husband wasted her estate, and deserted her. The allegations of her libel were, that her husband was "living under sore suspicion of notorious fornication (as public fame gives it out);" that he had deserted her for above seven years; threatening to poison her and to knock her on the head, if she came near him. 8 N. H. Hist. Collections 68.

There is no evidence that a divorce was granted here, but prior to February 28, 1682, she had obtained a divorce in the Province of Maine and had been duly married by one of the governor's council to Henry Seavy, of Portsmouth. Where

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fore Thomas Seavy, the father of her second husband, prayed that they may be more formally married, that they may know how to sue for their own." 8 N. H. Hist. Collections 117, 118.

On July 26, 1697, the records of the council recite :

:

"Whereas Eliza Smart presented her petition desiring a divorce from her husband, he being married to another woman at New York as by testimony from his own hand to Jno. Hinks, Esq. President, as also the testimony of Rob. Almary; if therefore the said Rob. Almary do swear before the Justice of the Peace to the truth thereof, then the President do issue forthwith a Bill of divorce accordingly." 2 Prov. Papers 249; see 3 Prov. Papers 312.

As the libel is not given, and there is no record of the Assembly, it is impossible to determine whether this was addressed to the legislature or not. The attempt was to delegate the power to grant a divorce to the President. He was to grant a divorce upon an affidavit. There is no evidence that any affidavit was furnished or that any divorce was granted. Careful investigation shows that none of the original papers are in the archives at the state-house, or known to exist elsewhere.

The act of June 14, 1701, section 5, provided virtually for what is now an existing cause of divorce, to wit, "that if any Married Person Man or Woman hath lately, or hereafter shall go to Sea, in any Ship or other Vessel bound from one Port to another, where the passage is usually made in Three Months time; and such Ship or other vessel hath not been or shall not be heard of within the space of Three full Years, next after their putting to Sea, from such port; or shall only be heard of under such circumstances as may rather confirm the Opinion commonly received of the whole Companies being utterly lost; in every such case the matter being laid before the Governour and Council, and made to appear, the Man or Woman whose Relation is in this manner parted from him or her may be esteemed Single, and Unmarried; and upon such declaration thereof, and License obtained from that Board, may Lawfuly marry again: any Law, Usage or Custom to the contrary notwithstanding." N. H. Laws, ed. 1726, 10.

This act was repealed June 20, 1792. Strange as it may

seem, if the Governor and Council were ever called upon to act under this law, no record thereof exists.

Thomas Holland was a merchant, sea-captain, a conspicuous man in the province, and one of the henchmen of Governor Dudley.

On October 5, 1702, his petition for divorce was read at the Council Board. As none of the original papers can be found at the state-house, the precise form of the allegations and the prayer is unknown.

It is clear, however, that she was charged with "adultery," "lewd carriage," "and other injuries done him in the embezzlement of his estate."

She admitted the adultery, but to some extent denied the other charges, and set up condonation as a defence. She testified before the board to acts which constituted a condonation. The husband testified "to the contrary." Two other witnesses (women) testified, but their testimony was not decisive.

On October 8, 1702, after reading his complaint, the council ordered,

"That the said Thomas Holland do forthwith provide for their three children; and that he allow her, said Elisabeth, six shillings per week for her maintenance during her residence in this province, and that public notification be given throughout this province.

If what the husband alleged and the wife admitted was true, it was clear that he was entitled to an absolute divorce, unless he had condoned her offence. If he had, he had no standing, and should have been sent out of court. But this anomalous decree, unless as a personal order, pendente lite, was outside the pale of all law.

There is no evidence which has any tendency to show that the matter up to this time had ever been brought to the attention of the house of representatives.

What would seem to have been the second petition, or libel for divorce, was read before the council board at the legislative session on February 10, 1703. This can be found at length in 3 Prov. Papers 277, 278.

This set up the marriage, birth of three legitimate children, non-access for two years, adultery and conviction thereof before

the council and her confession, the birth of another child as the fruit of this adulterous connection, and prays for "a divorce" or "separation."

Both houses concurred in granting a divorce-a mensa et thoro. The decree is set out at length in 3 Prov. Papers 279, 280. A copy was served upon Mrs. Holland by the secretary, who also showed her the original.

This was, if possible, a greater travesty upon justice than the other.

So far as known, it was the first and last divorce a mensa et thoro in New Hampshire, and the first legislative divorce here of any kind. Such divorces, as we have seen, began at a very early period in some of the colonies. Legislative naturalization of aliens began with the act of the colonial assembly of Maryland, in 1666. In 1773, George the III, by instructions to the governors of New Hampshire, Massachusetts Bay, New York, New Jersey, Virginia, North Carolina, South Carolina, Georgia, East Florida, West Florida, Quebec, Nova Scotia, the island of St. John, Barbadoes, Leward Islands, Grenades, Dominica, Jamaica, Bahamas, and Bermuda, prohibited such acts of divorce and legislation.

On April 12, 1771, an act was passed in New Hampshire "dissolving the marriage relation of Greenwood Carpenter and Sarah Leathers." This divorce was granted for adultery proved and confessed by her under her hand and seal. Probably for the reasons which caused the king to issue this proclamation, this act was disallowed by the king in council Sept. 1, 1773.

On December 14, 1773, the disallowance was communicated by the governor to the council, who "did thereupon advise that a proclamation be printed in the New Hampshire Gazette in consequence of the order aforesaid to render the said act null and void." 7 Prov. Papers 22.

All divorces since Holland's case were legislative until the divorce jurisdiction was transferred bodily to the highest court of the state by the constitution of 1784, by which alone divorces have been granted from that day to this.

From the earliest period to the present time the parties have been allowed to testify. Until at least as late as Poor v. Poor, decided at the December term, 1836, 8 N. H. 307, the parties