Without a court system in place to handle domestic cases, those seeking a divorce could only appeal to the Legislature. James H. Lane, later a free- state leader, went to Pawnee for the first meeting of the Bogus Legislature where he slept on the ground under a wagon and:
"...from morning until evening...spent his time confidentially buttonholing the assemblymen...interested in having the legislature grant him a divorce from the wife that had followed him from Indiana." [Monaghan, Civil War, 26]
James H. Lane (1814-1866)
Free-state leader, married Mary E. Baldridge in 1841, They were divorced in 1855 and remarried in 1857.
Charles Robinson, Lane's rival for leadership, said Lane only joined the free-state movement when the Bogus Legislature refused to grant him a divorce. [Robinson, Kansas Conflict, 146] Lane's wife returned to Indiana and obtained a divorce on the grounds of desertion, only to reconcile and remarry Lane two years later, when he returned to the state stumping for the Republican Party. [Lewis, The Man, 90]
During their session at the Shawnee Manual Labor School, the members spent some time considering a bill for divorce of John W. Freeland from his wife Rebecca. After hearing evidence in the matter just as a trial court would, the House rejected the bill. [House Journal 51, 59, 90, 91] Soon after, Mr. Anderson of the House offered a concurrent resolution of both chambers:
"Whereas, in the opinion of this house, a legislative body is not the proper tribunal to grant divorces; not only for the reasons that the causes which should entitle parties to have bonds of so sacred a character severed, cannot be sufficiently examined and inquired into, but also because of this species of special legislation much time is lost, of value to the country.
"And Whereas, there will be laws empowering the Courts of the country to grant divorces for sufficient causes. And, Whereas, Courts of Justice are the only proper tribunals which can properly take cognizance of such cases,
"Therefore, be it Resolved by the House of Representatives of the Territory of Kansas, (the Council concurring therein,) that the Legislative Assembly of the Territory will not entertain petition for, nor grant divorces in any case."[House Journal, 93]
The statute enacted by the Bogus Legislature was a conventional one with very limited grounds for divorce. Free-state lawyer Thomas Ewing wrote to a friend in Ohio in 1860 answering a question about the ease of divorce in Kansas:
"Dear John --The causes for divorce of husband from wife in Kansas are about the same as the causes in Ohio 1. Impotency at date of marriage 2d. Other husband living at same date. 3d. Adultery. 4th. Desertion & absence without reasonable cause for one year. 5th. Becoming addicted to habitual drunkenness since marriage. No "other reasonable causes" nor expression to that effect. But Judge Pettit of Indiana is presiding over our court and when on the bench in that state he used to grant divorces in all cases in which the party applying could prove "crooked toes, or cold feet!" [KSHS, Thomas Ewing, Jr. Collection, #341]
Perhaps because of the limited grounds afforded and evidentiary problems in disputed cases, private bills continued to be offered in later territorial legislatures, despite the advice of the Bogus Legislature in its resolution following the Freeland divorce bill. Cyrus K. Holliday, a free-state Council member in 1859, wrote to his wife:
Dear Mary - ...Oh, I almost forgot to mention that yesterday in half a minutes time a bill was introduced into the Council & passed clear through under a suspension of rules, divorcing Josephine Branscomb from the man she married 6 or 8 months ago - It then went to the House of Representatives, and with equal dispatch, and no discussion went through there. In all there was not exceeding 15 or 20 minutes in making Miss Branscomb a single woman. It only wants the signature of the Governor to become a law; and this it will doubtless receive." [KSHS, Cyrus Kurtz Holliday Collection, #386]
In fact the practice of private bills for divorce became so pervasive that legislative divorce was specifically prohibited by the Wyandotte Constitution. Thomas Ewing advised that those wanting quick divorces should come before statehood:
"...If the Dr. had come to Kansas during the session of our last legislature he would only have had to mention his wishes to a member on first introduction, & he would have had his bill through in 24 hours. If we are not admitted, he had better come out next winter. But as our new State Constitution prohibits the legislature granting divorces, and as our law leaves but little room for Pettit to exercise his discretion on the subject, Kansas can afford the Dr. no unusual facilities except in the Territorial Legislature." [Ewing, loc.cit.]
The Atchison Freedom's Champion, reporting on the last Territorial Legislative session before statehood in February, 1861, said of special interest legislation:
"The Legislature has done but very little business thus far, chiefly because there is nothing to do. Everybody has been incorporated and divorced. Every stream has its chartered bridge, every creek its ferry, every town its College and University, granted by some previous assembly; the real interests of the country have been so confounded by absurd and impertinent legislation that all hope of extrication under the present system is vain.."[KHQ 27:1-21]
