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
[364] But in _Laws_ (1848), 94, 95, the following case of
legislative interference may be found: "The right is hereby
given to Ludwig Brunileu to apply to the supreme court of this
state, in equity, for a divorce from his wife Bertha, ... with
the same effect and on the same footing in every respect, as if
they had been married in this state, and the offence or offences
complained of had been committed in this state, and within five
years prior to the time of such application."
[365] THOMPSON, _Laws of the Commonwealth of Pa._ (1804-6), VII,
73-75.
[366] THOMPSON, _op. cit._, 326-28.
[367] See, for example, _Acts_ (1808), 138, 140, 146 (for
cruelty, force at marriage, etc.); _ibid._ (1810), 82, 89, 194
(insanity before and after marriage, imprisonment for crime,
abuse, and abandonment); _ibid._ (1811-12), 28, 34, 143, 195,
198, 228, 231, 237; _ibid._ (1820-21), 3, 29, 35, 48, 139.
It was in Delaware, however, that legislative divorce died the
hardest death. By the act of 1832 the superior court was given
"sole cognizance of granting divorces" for cruelty, abandonment,
and some other causes; and in 1852 it was enacted that no "petition
for a divorce shall be received or acted on by the general assembly
for any cause cognizable" by that court, "nor without proof of one
month's public notice of the intention to prefer such petition, by
advertisements in a newspaper published within the county of the
petitioner's residence, if there be one," or, if not, then in some
other newspaper in the state.[368] Although this declaration of the
assembly restricting its jurisdiction to cases not provided for by
law was subsequently more than once repeated,[369] there was still
a wide range for interference, even if the will of one legislature
could bind that of another. The number of petitions granted waxed
apace. In 1887 it was forty-two; in 1889, sixty-three; and two
years later, forty-eight.[370] In the meantime a remedy was sought
through appeal to constitutional interdict. Once the effort was
almost successful. By an act of April 20, 1893, the assembly
proposed an amendment to the constitution giving the supreme court
exclusive jurisdiction in divorce suits, but only "for the causes
and upon the conditions prescribed by the legislature.[371] This
amendment failed of adoption; but its purpose was soon secured in
the new constitution of 1897, which declares that "no divorce shall
be granted, nor alimony allowed, except by the judgment of a court,
as shall be prescribed by general and uniform law."[372]
[368] _Rev. Stat. of Del._ (1852), 78.
[369] _Ibid._ (1874), 150; _ibid._ (1893), 242.
[370] _Laws_ (1887), 528-40; _ibid._ (1889), 1046-64; _ibid._
(1895), 300-308.
[371] _Laws_ (1893), 617.
[372] _Const. of the State of Del._ (1897), Art. II, sec. 18, p.
141.
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