A History of Matrimonial Institutions, Vol. 3 of 3

by George Elliott Howard

It is not surprising that these "safeguards" proved as futile in Alabama as elsewhere. The obtaining of divorces was facilitated rather than hindered. The number annually granted mounts apace. In 1822 the record is not yet formidable, but the session laws show twenty-three cases in 1843, twenty-four in the next year, and not less than sixty-seven in 1849-50.[153] So it seemed necessary to appeal to organic law for a remedy. The constitution of 1865 therefore declares that absolute divorces shall only be granted by a suit in chancery; and that decrees in chancery "shall be final, unless appealed from in the manner prescribed by law, within three months" from the date of their enrolment. This section is repeated in the constitution of 1867; but in that of 1875 a different provision appears. "No special or local law," it is now declared, "shall be enacted for the benefit of individuals or corporations in cases which are or can be provided for by a general law, or where the relief sought can be given by any court" in the state.[154] From the terms of this section it may be inferred that in exceptional cases resort might still be had to the assembly. Accordingly, in 1883, by legislative decree, we find that Claudia Shaw, of Macon county, was released from the conjugal bond and constituted a feme sole for all purposes whatsoever.[155]

The history of American lawmaking in Louisiana opens with two divorce decrees passed by the legislative council of the Territory of Orleans. By the first of these acts, dated January 23, 1805, and signed by Governor Claiborne, the marriage of Captain James Stille and Lydia his wife is dissolved and each is "fully authorized" to "contract in matrimony" again whenever to either it "may seem right." This separation is allowed "in consequence of an unhappy disagreement, resulting from circumstances of an afflicting nature," which had prevented the couple from "enjoying that harmony and domestic happiness which the conjugal state was designed to produce," and leading them soon after the marriage "to resolve upon and stipulate for a complete and perpetual separation."[156]

This example found frequent imitation both before and after the state of Louisiana was organized. By March 3, 1827, forty-six legislative divorces had been granted.[157] With these, however, the history of such cases comes to an end; for, a few days later, exclusive jurisdiction in all divorce matters was bestowed upon the courts;[158] and the policy thus adopted by statute was ratified by the constitution of 1845.[159]

A federal law in 1886 prohibits legislative divorce in any of the territories of the United States. Previous to that date, however, it had existed in Arizona. During the single session of 1879 seventeen divorces were granted by legislative decree; and the practice may have continued until stopped by congressional authority.[160]

Kentucky refrained from any divorce legislation until 1809, when jurisdiction was conferred upon the circuit courts.[161] But the jurisdiction was not exclusive; for year by year until 1850, when the usual constitutional interdict appears,[162] the session laws show the assembly engaged in passing divorce decrees.[163] In the meantime provision was made for notice to the adverse party. By the act of 1837, in case of residents of the state, there must be one month's written notice in which the ground of the intended application to the legislature shall be set forth; while, if the defendant is a non-resident, publication of the notice for four weeks in some "authorized" newspaper "may supersede the necessity of personal service." When a divorce is granted on such application, the wife shall receive back the estate which the husband had with her at the marriage, unless she has been guilty of conduct such as by the laws of the state would forfeit her right of dower; and when the husband's conduct is the cause of separation, she is entitled to the same share of his real and personal property as if he were dead.[164]

A few years later the Kentucky assembly accomplished a feat which surely "breaks the record" in the history of social legislation. On the 4th of March, 1843, in one short act of less than two pages of type the hymeneal bonds of thirty-seven couples were severed by one fatal clip of the lawmakers' shears; while, in addition, room is found in the bill to make provision for the children and to restore the maiden names of some of the women, but not for any mention of the causes.[165]

It is in Georgia, however, that the divorce laws and judicial decisions reveal the strangest vicissitudes and the most singular vagaries. To understand the course of events it is essential in the outset to observe two important facts. The common law, it will be remembered,[166] was, with certain limitations, adopted by the state in 1784; and the constitution of 1798 permits "two-thirds of each branch of the legislature to pass acts of divorce," but only after the parties shall have had a fair trial before the superior court, and a "verdict shall have been obtained authorizing a divorce upon legal principles."[167] It would have been hard to select a phrase more ambiguous than the clause last quoted. Just what are the "legal principles" referred to? Are they the principles of the English ecclesiastical law, as constituting a part of the common law made binding in 1784? Are they perhaps to be sought in previous enactments of the state or province of Georgia? No such statutes have been discovered; and no divorce seems ever to have been granted, unless by the assembly after the Revolution. With this analysis of the problem before us, the course of legislation during the half-century following the adoption of the constitution of 1798 may now be traced.

The worthy lawmaker starts out valiantly. The act of 1802, giving the superior court primary and the legislature final jurisdiction in petitions for total divorce, as required by the constitution, is justified in language which seems grotesque in the light of later experience. Such a measure is needful, we are assured, not only because there are doubts as to the powers of the judges in divorce causes without a statute, but because "marriage being among the most solemn and important contracts in society, has been regulated in all civilized nations by positive systems;" and because "circumstances may require a dissolution of contracts founded on the most binding and sacred obligations which the human mind has been capable of devising, and such circumstances may combine to render necessary the dissolution of the contract of marriage, which dissolution ought not to be dependent on private will, but should require legislative interference; inasmuch as the republic is deeply interested in the private business of its citizens."

The preliminary trial provided for by this act is before a jury whose verdict must take the following form: "We find that sufficient proofs have been referred to our consideration to authorize a total divorce, that is to say, a divorce a vinculo matrimonii, upon legal principles between the parties in this case"—which is an attempt, however awkward, to satisfy the demands of both law and constitution.[168] In 1806 a new statute appears, creating a most intricate procedure. As in 1802, no specific causes are named for either limited or complete divorce. All petitions coming before the superior court are to be referred to a "special jury, who shall enquire into the situation of the parties before their marriage and also at the time of the trial." They may grant either a conditional or a total divorce. In the former case their verdict shall make provision out of the husband's property for the separate maintenance of the wife and children; and the court shall cause the "verdict or decree to be carried into effect according to the rules of law, or according to the practice of chancery, as the nature of the case may require." The verdict for absolute divorce is, of course, placed before the legislature for approval. If the legislature "refuse to pass a law or to carry the same into effect," either person, on due notice to the other, may apply to the superior court of his county to appoint three commissioners who, after proper inquiry into the circumstances of the parties, by witnesses when necessary, may allow separate maintenance. The report of the commissioners to the court is to be entered as its judgment. Even now the matter is not ended. There is still a last chance for the discontented spouse. If dissatisfied with the judgment, either person may apply for its modification to the next court, which shall refer the first report or decree to a commission comprising the original three members, with two others. The finding of this body is then entered as the definitive judgment of the court.[169]