THE
BREVIER LEGISLATIVE REPORTS.
FOURTEENTH VOLUME.
INDIANA LEGISLATURE.
Granting of Divorce.---Debate in Continuation.
IN SENATE.
TUESDAY, February 11, 1873.[Afternoon Session.]
[CONTINUED FROM PAGE 146.]
The Senate having under consideration Mr. Orr's bill [S. 117] regulating the granting of divorces, on the second reading -
Mr. ORR said: I am free to say that I am not in favor altogether of the bill as reported by the Committee; but I shall vote for it believing it a much better law than the present one on our statute book.
Mr. GOODING. I think that a great deal of unnecessary calumny has been cast upon the State of Indiana on account of this law. As has been said, it is not the fault of the law that there has been abuses, but the fault of the officers who executed the law. I would like to know if there ia any good reason for refusing to afford the protection of law to a man who has been here one year any more than to a man who has been here five? Is he not entitled to the protection of law to the same extent as though he had resided here for twenty years? I say then the fault is not in the law but in the frauds perpetrated under the law. A complaint is made that the courts are imposed upon by false evidence, yet we know that the law makes it the duty of the Prosecuting Attorney to appear and defend against all actions brought for divorce, and that the judge is to determine for himself whether he believes the witness or not. The Judge may say "I do not believe that witness;" and disregard the evidence.
Mr. DWIGGINS (interposing.) Has the Judge that right?
Mr. GOODING. He has; he may believe or entirely disregard the evidence. I think it is a matter undenied in this country that there are more unlawful divorces granted in the city of New York than in the whole Stale of Indiana. This bill proposes that the Judge shall not believe a man on oath in court unless he is a freeholder. Who ever heard of the like before? I do not believe this Senate is prepared to say that a man cannot be believed on oath simply because he is not a freeholder. I think if the bill is referred to the Judiciary Committee with instructions to strike out the omnibus clause we will have a good divorce law.
Mr. HALL. I have no doubt the people of Indiana will regard the statements made by the honorable gentleman, but in contrast to his statements as to whether our law is a good one or a bad one I request that this statement of Governor Baker, made in 1871, be placed alongside: "Some of the reproach that has been cast upon the State in this connection is doubtless undeserved; but a candid review of our laws and their practical operation on this important subject will, it is believed, satisfy any impartial mind, that a reformation is imperatively demanded:" (BREVIER LEGISLATIVE REPORTS, vol. XII, page 43.) Whether it requires a freeholder to stop this abuse or something else, let us page: 454[View Page 454] have whatever it is;let us cast this reproach and shame from us. This thing of having any man from the street corner come up and swear that the applicant has been a resident of the State for a year should be done away with; and we should have men of sufficient character
Mr. FRIEDLEY of Lawrence (interrupting.) Does the Senator want it shall go to the country that because a man don't own land, he can't tell the truth?
Mr. HALL. No, sir, but in Indianapolis there are men who could barter their souls away for a simple fee ; and there are men to be found in Vanderburgh and other counties that will do the same, but you can't find such commonly among men who have sufficient self respect to hold property.
Mr. HUBBARD. It seems to me that the statement made by Governor Baker was made after careful consideration, and in view of the fact that the papers of the United States hold us up to scorn and our own press cannot successfully deny it, is enough to teach us that some reform is necessary. In my experience I have never known a divorce under that omnibus clause, nor have I seen but few attorneys that have used that omnibus clause. Only the other day a decision of the Supreme Court of Michigan was published, in which that tribunal has set aside and disregarded a decision made by one of the inferior courts of this State. They questioned it on the ground of residence,they said the residence in Indiana was a fraud according to the law of Michigan. They say that the party proving a residence in Indiana was committing a fraud ; not because the residence was required by the State, but because he had no residence here at all, and the courts of Indiana had no jurisdiction over the other party.
Mr. O'BRIEN. I had hoped that gentlemen who seem to be so much opposed to this law would be filling to take a fair and square vote upon this bill. If gentlemen are well satisfied that the people are content with the law we now have, why don't they come in the Senate and vote in that way? Why undertake to refer this bill back to a committee confining the committee to instructions that do not avoid the very evil complained of all over the State of Indiana? It is begging the question to get this bill referred to a committee and thereby dodge the responsibility of what the people demand we should do to change our divorce law - which is a disgrace to Indiana. We ought to take a vote upon this bill - upon its merits. I am in favor of striking out the omnibus clause. It is under that our courts are continuously imposed upon. Let us require that proof be made by citizens who are responsible, so that if they testify falsely they can be dealt with. What can you do with a person in New York who sends a deposition out here swearing that the plaintiff has been a resident here for a year? I say unless the court has some ground for disregarding the testimony of a witness - if the testimony is not contradicted a court can not refuse to grant a divorce.
Mr. SLEETH. Owners of real estate are not transit persons, and for the reason that they are fixed and settled inhabitants they are taken to prove the residents of transient persons. And I must say to the Senator from Vanderburgh that this is not a new rule of evidence. Not many years ago the Senator himself could not have voted unless he had his name registered without resorting to this very class of persons. I have never known, where any evidence was required for the purpose of ascertaining a residence as in the case of the registry law, but what this is the rule usually resorted to. We cain't prove the residence of a transient person by transient persons; we have to take fixed residents to prove the residence of a transient person, I have known men to steal the seal of a notary public and manufacture depositions from beginning to end, upon which they would go into the courts of Indiana. And suppose a man goes into court with depositions in proper form, how can the court refuse to administer the law, when the facts necessary are proven? But suppose the law was in force and he required to bring on to the stand freeholders, he would have made but slow headway. Instead of one we should have two years residence and a different order of proving that residence. It is too convenient for a citizen of New York, Connecticut, or Ohio, to rent a room in a hotel or some country village, returning there month after month while living in some other State, and after the year expires come here and prove by some one that this is his residence. And the courts have to decide this question on the evidence. I have seen divorces granted* where there was no other cause than simply incompatibility of temperament. It depended on whether the Judge thought that was sufficient; if he did he must grant the divorce. That is another defect in the law.
Mr. SLATER. No Senator has yet shown that there has been any injustice done by the leniency of this law. As for me I am in favor of meeting this question fair and square, and will vote against every provision in this bill. I think our divorce laws are just, and that no parties should be compelled to live together who do not desire to. It has been said that this land is the home of the oppressed, and if it is not the hardest kind of oppression to compel a man to live with a woman he does not want to, I don't page: 455[View Page 455] what is. Our laws allow a man after the State six months to become a legal voter, and now to say by a new law that he shall not have the right to come into her courts under three years is proposing to deprive him too long from that privilege. I am in favor of voting the bill down.
Mr. THOMPSON desired to offer the following amendment which was read for information: " Providing that except in cases of adultery and the commission of an infamous crime, no divorce shall be decreed upon petition filed within three years."
Mr. DWIGGINS demanded a division of the question - see middle of second column, page 146.
