to the public, be a travesty on justice, and would tend to still further lessen, if possible, the estimation in which American divorce decrees are held in England. So much has been said about the anomalous character of divorce legislation in the Western States and the ease with which divorces may be obtained, that the subject is looked upon as exhausted and the evil one that must, perhaps on account of its iniquity, be left to work out its own remedy. But there is one feature of the subject to which, it is submitted, at tention has not been drawn, and that is the responsibility of the judges who preside over the courts in which these facile divorces are granted. It seems to be naturally as sumed by them that if the technical rules of procedure are complied with they have no option but to grant the de cree. Such an exercise, or rather failure of exercise, of a judge's prerogative is beyond the comprehension of an English lawyer. To him a judge is a judge in the broad est meaning that can be given to the word. The function of the judge of any one of the English courts, from the High Court to the pettiest magistrate, is to administer justice —- anil not merely to see that certain technical rules of practice are complied with. If the judges of the courts in those States which have become most notorious for the looseness of their divorce practice could be induced to take this view of their functions, the evil would be greatly lessened if not altogether done away with. An illustration of how the system works at present and why the English people have a contempt for divorce practice in America has recently occurred here. In 1881 one John Rcid Mc Allister married, in a suburb of London. Two years afterwards he went to Omaha, leaving his wife to follow him when he had made the necessary arrangements for her home there. He sent her money sufficient for her support, and then, after having been in America a little over a year, wrote to his wife to join him. She packed her trunks, in which were a number of articles made by her own hands for his wear, and was about to sail when she received a cablegram, "Don't sail. Am leaving Omaha." From that time until 1891 she never heard from him, and then through a third person she received a copy of a decree of a divorce which hail been granted to him in June, 1888, by the *' District Court of the Third Judicial District of Omaha for Douglas County, the Hon. Eleazer Wakeley, one of the judges, presiding." The decree, as usual, recites that the court finds that "due notice of the filing and pending of the petition was given to the defendant according to law and she has failed to answer or demur to said petition. And that said parties were married as set forth on the pe tition and that the plaintiff has been wilfully abandoned by the defendant, without just cause, for the term of two years prior to the filing of the petition, and that the defendant has committed adultery with one Mr. Roland as alleged in the petition." It is of course unnecessary to say that there is not a word of truth, except as to the marriage, in any allegation of this recital. The wife, as a matter of fact, resided during the whole period of her husband's absence, first with his
mother and then with her own father. The mother-inlaw's house was on the same street and nearly opposite the house where Mrs. McAllister's father has now been residing for nearly seventeen years. The address of the wife was constantly known to the husband. The Mr. Roland whom it is conjectured the decree refers to, is a physician who attended the wife during the fatal illness of a child who was born two days after the father left for Omaha. This physician, in all, paid three visits to the wife, and some one was in the room on each occasion, and the wife has never seen him on any other occasion. The details of this story are possibly no more striking than those of numerous other tales of a similar character which might be cited, and they are mentioned now only to draw attention to what is considered in this country a scandal ous dereliction of duty on the part of the judge who pro nounced the decree. It may be admitted that the pro ceedings were regular on their face. The return of the sheriff undoubtedly showed that the defendant could not be found, and an order of publication was doubtless ob tained. Then the plaintiff gave such evidence as he had been instructed was sufficient to entitle him to a decree, and the decree was pronounced. But, it is submitted, this is not in accordance with the spirit of the law, no matter how closely it adheres to the letter. It was un questionably the duty of the judge, particularly as the proceedings were undefended, to see that justice was ad ministered, and that no advantage was taken of the absent defendant. The statutes of Nebraska (Sec. 1428) pro vide that suits for divorce shall be conducted in the same manner as other suits in courts of equity. They further provide (Sec. 1456) that no decree of divorce shall be made solely on the declarations, confessions or admissions of the parties, but the court shall in all cases require other satisfactory evidence of the facts alleged in the petition. In this case proof should have been required that the plaintiff had used every reasonable endeavor to inform the defendant of the filing and pending of the petition, and satisfactory evidence, other than that of the plaintiff, that the wife had deserted her husband and of her alleged adultery. The consequence of the miscarriage of the laws of Nebraska, under color of which this fraud was perpe trated, are most deplorable. The decree will not be recog nized here, where the wife is still bound by the marriage. By a wise provision of the statutes of Nebraska the decree of divorce may be set aside at any time on the ground of fraud. In this case the second wife whom the plaintiff has since married would be nothing more than his mistress, his children would be illegitimate and he would be liable to a criminal prosecution for bigamy. The Green Bag is regularly read by hundreds of judges in whose hands are the power of divorce under laws which render such perversions of justice as is here out lined possible. Is it too much to hope that some of them may determine to pursue such a course henceforth as will make a repetition of the McAllister case, or the occurrence of a Langtry case, impossible within their jurisdiction? Stuff Gown.
