A History of Matrimonial Institutions, Vol. 3 of 3Howard, George Elliott
History
A History of Matrimonial Institutions, Vol. 3 of 3
Howard, George Elliott
Families; Marriage -- History
The law of 1841 was the last attempt in Maryland to regulate
legislative divorce. The efforts of the preceding twelve years
to devise checks and provide safeguards were largely unavailing.
Division of responsibility between the court and the legislature,
whose effects are so well illustrated in the case of Georgia
presently to be considered, is pretty sure to result in the removal
of all real responsibility. Each successive year produced an
increasing crop of divorces. Thirty-one were granted in 1835, and
thirty-six in 1837. Occasionally the decree is from bed and board;
in most cases it is for absolute dissolution of the marriage bond.
Usually it is curtly expressed in a few words of the statute-book.
Often the cause is not mentioned; although, after 1830, the details
in most instances are doubtless to be found in the judicial papers
transmitted to the assembly.[133] In 1842, for the first time,
full jurisdiction in divorce cases is bestowed upon the courts.
Consequently there is a falling off in the number of legislative
decrees; but they nevertheless continue to appear in the session
laws until the constitution of 1851 forbids the general assembly to
interfere in such matters.[134]
[133] For the numerous cases of legislative divorce see the
_Index to the Laws of Maryland, 1826-31_; _ibid._, _1832-37_;
_ibid._, _1837-45_, 224-29.
[134] The constitution of 1851, Art. III, sec. 21, declares that
"no divorces shall be granted by the General Assembly."
Virginia anticipated Maryland by fifteen years in granting to the
superior court of chancery full power to hear and determine suits
for absolute and partial divorce. The act of 1827 names the causes
for which alone judicial divorces of either kind may be granted,
and provides for alimony and custody of the children. But this
statute also contemplates the obtaining of divorce _a vinculo_
through resort to the legislature. It is provided that "every person
intending to petition the general assembly for a divorce, shall
file in the clerk's office of the superior court of laws, for the
county in which he or she may reside, a statement of the causes on
which the application is founded." At least two months before the
next court, notice must be given to the adverse party "by personal
service," when a resident in the state; otherwise, by publication
for four weeks in "some newspaper printed in the city of Richmond."
Thereupon, "without other pleadings in writing," the court "shall
cause a jury to be impanelled to ascertain the facts set forth in
the said statement; and their verdict shall be recorded;" but the
confession of the parties shall not be accepted as evidence at the
trial. A certified copy of these proceedings must accompany every
petition presented to the legislature; unless a divorce from bed and
board shall have been previously granted by the court of chancery,
in which case a copy of the record may be substituted.[135]
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