A History of Matrimonial Institutions, Vol. 2 of 3

by George Elliott Howard

In Virginia we find the county court, which had gained a share of the equity jurisdiction,[1068] hearing and granting petitions for separate alimony. Thus in 1691 the prayer "of Ruth Fulcher for separate maintenance against her husband, John Fulcher," was referred by the governor and council, constituting the "general court,"[1069] to the justices of a county court, "who, after hearing the testimony, decided in favour of the plaintiff."[1070]

Now, by the English law alimony could not be granted in an independent action, but only as incident to a divorce by decree of the ecclesiastical court. Moreover, in Virginia no colonial statute had ever conferred this portion of the ecclesiastical jurisdiction upon the local courts or upon any other tribunal. How, then, consistently with the principles just stated, could a petition for separate maintenance be entertained by the county magistrates as falling within their equity jurisdiction? From two decisions in the early part of the present century the dual innovation is represented as the result of justifiable self-help under the stress of circumstances; while, in the absence of a statute authorizing it, the assumption of the power of the ecclesiastical court by the equity tribunal is looked upon as a natural and logical course. In the first of these cases, arising in 1810, the superior court of chancery affirms its own jurisdiction in suits for alimony. The chancellor, after conceding that the authorities are in doubt and divided, holds "that in every well-regulated government there must somewhere exist a power of affording a remedy where the law affords none; and this peculiarly belongs to a court of equity; and as husband and wife are considered as one person in law, it is evident that in this case the law can afford no remedy; which is universally admitted to be a sufficient ground to give this court jurisdiction, and therefore it must entertain the bill."[1071]

Thirteen years later this "reasoning of the chancellor on the point of jurisdiction" is pronounced "sound," in a suit for separate maintenance which was carried from the chancery court of Fredericksburg to the Virginia court of appeals. In his opinion Judge Carr says: "I find no case with us, in which the subject has been before this court. Having no Ecclesiastical Tribunal, the powers of that court seem to have been considered as vesting originally in the old General Court. From thence, some of them have been distributed to other courts, as they were branched out.... I know of no law which has given to any court the trial of matrimonial causes, except so far as relates to incestuous marriages, as to which a power is given to the Court of Chancery to annul them." Judge Tucker, he continues, in his edition of Blackstone,[1072] "says with respect to suits for alimony after a divorce a mensa et thoro, as there is no court in Virginia which possesses jurisdiction in such cases, there can be no room for suits of this nature; unless, perhaps, the High Court of Chancery should sustain them as incidental to its equitable jurisdiction." "I believe," adds Judge Carr, "that in practice the County Courts, sitting as courts of equity, have assumed the power of giving separate maintenance in cases of separation; but by what rule they have been regulated, I know not."[1073]

But the colonial and state courts of equity, in "exercising the authority, not of granting divorces, but alimony, where the latter was the only relief prayed," seem to have acted contrary to the more approved legal rule; and Bishop suggests that their course may have been influenced by a misunderstanding of the policy of the commonwealth. In the time of Cromwell "the ecclesiastical courts were abolished; thereupon the equity judges were expressly authorized, it appears by a clause in their commissions,[1074] to decide causes of alimony, and after the Restoration their decrees were by statute confirmed. Misapprehensions of this matter have sometimes led to the inference that the equity courts took cognizance of the question simply as of their own appropriate jurisdiction, because of the extinguishment of ecclesiastical tribunals, or as succeeding to them. But this obviously was not so; since, had the jurisdiction been theirs, they would have exercised it as well when there were ecclesiastical courts as when there were none, for the latter never claimed it, their alimony being only an incident in the divorce suit; and since any jurisdiction which they might assume as successors of the defunct ecclesiastical courts could have been only to decide causes of divorce, with their incidental alimony, not to grant an alimony before unknown." The granting of separate alimony without a divorce is now common in the states;[1075] and, from whatever source the courts have derived their power, it is entirely justifiable as satisfying a social need. In the absence of statutory sanction justice may demand that some existing body shall promptly grant relief; though it is doubtless true that the authority to do so cannot be logically assumed as the legitimate inheritance of equity tribunals from the ecclesiastical courts.

The colonial law of Maryland on the subject does not differ essentially from that of Virginia, although there are some divergences of interest. Judicial divorces were not granted. A number of early cases show that the high court of chancery took cognizance of suits for separate alimony as naturally belonging to its jurisdiction in the absence of ecclesiastical courts. Of these perhaps the most important for the facts presented, though the precise ground of the judgment is not clearly expressed, is the action of Galwith v. Galwith which in 1689 came before the provincial court on appeal from the court of Calvert county. The record of the lower tribunal states that at the June term, 1685, "the appellee, being the wife of the appellant," presented a petition "setting forth, that within a few years certain false, evil, and scandalous reports were raised and spread abroad against her by some malicious persons," causing "great dissention and difference between her husband and herself, insomuch that he refused to entertain her in his house, or allow her a competent maintenance elsewhere, by which she was reduced to great poverty and want." Whereupon, in June, 1684, she "applied to the county court for relief and redress therein, at which time the court hearing and considering the premises, granted an order that her husband should allow ... her 2000 wt. of tobacco for her maintenance the year next ensuing." Now the "year was completed and ended, and her said husband not being reconciled nor willing" to take back either herself or the child, "which she hitherto had maintained," she "would in a short time be brought to extreme poverty and necessity without further assistance from the court." Therefore she prayed that the court would give order that her husband might "take her home to dwell with him, which she was desirous to do, or else that he might be enjoined to allow her a competent maintenance for herself and child." Accordingly the "said John Galwith" was commanded to "take home his said wife Jane Galwith, to dwell with him as man and wife ought to do; otherwise to allow ... her 3000 wt. of tobacco a year, commencing from that day."

John then appealed to the higher tribunal, assigning for errors: (1) that the county court passed judgment against him upon reading the petition without calling him to answer, "so that he is condemned unheard contrary to the law, and against the statute of Magna Charta;" (2) that the county court had "no jurisdiction of the matter in difference ... , being touching Alimony, which is not recoverable there but in chancery, or the court of the ordinary;" (3) that the county court cannot take "cognizance of matters relating to causes of separation and divorce between man and wife, but such matters are only triable and examinable in the court of the ordinary."[1076] The judgment was reversed, but on what particular ground we are not told; so that from the apparent inconsistency of the last two specifications, one might be in doubt, were the fact not well established, whether the high court of chancery had jurisdiction; for surely alimony is strictly a matter "relating to causes of separation and divorce," cognizance of which is said in the report to belong in effect to the bishop of London as ordinary. One point, however, seems clear: the county court had no power in such causes; and that is what one would infer according to the doctrine of the Virginia judges before quoted; for, unlike the county courts of Virginia, those of Maryland had no equity jurisdiction.[1077]

Some other decisions of a later date throw light on the colonial practice. In Macnamara's case, involving alimony, decided before the Revolution, "the defendant claimed an appeal to the Arches Court in England. His right thereto seems to have been acknowledged, it does not appear on what principle."[1078] Again, in 1828, it was declared in Farnshill v. Murray that "there never having been an ecclesiastical court, and no power to grant a divorce by annulling for any cause, a contract of marriage which was originally valid ever having been conferred upon any of the courts of justice, it follows that a divorce can only be granted by an act of the general assembly;" but in the provincial era alimony was customarily granted by the court of chancery.[1079] Similar evidence two years later is afforded by the opinion in Helms v. Franciscus, where the parties had a written agreement to live apart. In the absence of the ecclesiastical court it is affirmed, "the high court of chancery always had, even under the provincial government, entire jurisdiction of such claims for alimony, or for separate maintenance out of the husband's estate founded on his misconduct," but chancery may not meddle with causes of marriage and divorce. Moreover, it is laid down, apparently as the rule in the colonial as well as in the modern period, that separate maintenance may be assigned by the equity court only on the two grounds of misconduct admitted in the ecclesiastical tribunals as proper reasons for a divorce a mensa et thoro.[1080] It may also be noted that the jurisdiction in suits for alimony, assumed prior to the Revolution by the courts of equity, was later confirmed by statute. In 1777 it was enacted that the "chancellor shall and may hear and determine all causes for alimony, in as full and ample a manner as such causes could be heard and determined by the laws of England in the ecclesiastical courts there."[1081] Commenting on this act Bishop remarks that "as the ecclesiastical courts in England had no power over alimony except in connection with divorce, it would not have been an extravagant interpretation to derive from this statute authority to decree both divorce and alimony, to the extent exercised in those courts. But it was held, instead, that the wife could have under it the sort of alimony we are considering, for any cause authorizing in England a divorce from bed and board, and even sometimes for other causes;[1082] yet not the divorce."[1083]

It is just possible, finally, that absolute divorces were granted in Maryland by the colonial assembly—a common practice after the Revolution. "In this state," it was held in 1829, "the act of divorcing man and wife has been performed by the legislature, for the want, perhaps, of ecclesiastical authority to effect it, or borrowing, perchance, the power from the parliament of Great Britain.... However this may be, divorces in this state, from the earliest times have emanated from the general assembly, and can now be viewed in no other light than as regular exertions of legislative power." But no evidence is forthcoming for the "earliest times."[1084]