Head v. Head

• Decision Date: 28 February 1847
• Docket Number: No. 27.,27.
• Citation: 2 Ga. 191
• Parties: Bedford Head, plaintiff in error. vs. Amanda F.M. Head, defendant in error.
• Court: Georgia Supreme Court

2 Ga. 191

Bedford Head, plaintiff in error. vs. Amanda F.M. Head, defendant in error.

No. 27.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1847.

Divorce. From Monroe Superior Court. Tried before Judge Floyd, September Term, 1846.

Ground. Abandonment by the wife. For the judgment of the Court below and the error assigned, see the opinion of the Supreme Court

Angus M. D. King, for the plaintiff in error.

No appearance on the part of the defendant.

By the Court — Nisbet, J., delivering the opinion.

This was an application by the husband for a divorce, a vinculo matrimonii, upon the single ground that his wife had abandoned him. She would not live with him and that was all he had to allege against her. The Court below decided that abandonment by the wife was not a good cause for divorce, either a vinculo matrimonii or a mensa et thoro. To this opinion the libellant excepted.

We might perhaps have determined this question, affirm-[1.] ing or disaffirming the judgment without giving any opinion as to what constitutes good cause for divorce generally in this State, but for the fact that the plaintiff in error rested his claim to a divorce in this case upon a construction of our Constitution and laws, which necessarily exacts an opinion. He, through his learned counsel, contends that, according to a fair construction of the Constitution of Georgia and of the laws enacted to carry it into effect, the question of divorce or not, in its totality, is submitted to the special juries; that they are the sole and final judges in all cases of what shall be a good cause of divorce irrespective of the common law principles, which, when we adopted it, governed divorces in England. This position was indispensable to him because by the common law it is too plain to admit of question, that abandonmentby the wife is not recognized as cause of divorce a vinculo. The burdensome responsibility is, therefore, thrown upon this Court of determining what are the relative powers of the court and jury in divorce causes, and what are the legal principles mentioned in the Constitution and also in the Acts of the Legislature upon which they are to depend. It is matter of sincere regret that this cause being presented ex parte, we had not the benefit of argument on both sides. The questions are of vital interest to the people of this State. There are no questions which, in my view, with a more searching and serious power pervade the moral, social and political interests of the State. The judgment we have given in this case is in repeal of the practice of the courts in a majority of the circuits, and in disaffirmance of the opinion of eminent jurists upon the bench and at the bar, and in conflict with that public sentiment which, springing out of and strengthened by the heretofore judicial facility which has characterized the action of the courts, tolerates and expects divorces for slight causes. And, therefore, we cannot fail to feel the responsibility of our position with more than ordinary intensity. A violent change in judicial administration naturally tends to shock the feelings of the community. Greatly would we have preferred that the Legislature had declared the law of divorce They have not declared it. This tribunal organized for the very purpose of giving a uniform and permanent construction to our Constitution and laws, would be recreant to its solemn duties could it turn aside from any question submitted to it. It meets this cheerfully, having no doubt that we are right in the conclusions to which we have arrived, and having no fears but that the judgment of the profession and of good and enlightened men of all classes will approve them.

Prior to the Constitution of 1798 we find no legislation upon the subject of divorces. Before that time the Legislature possessed, and we know did exercise the power of granting divorces; the same power which the Parliament of Great Britain exercised, a power having no limit and recognizing no restraint but the will of the body. Each divorce granted by our Legislature intervening the organization of the State government and the Constitution of 1798, pro tanto repealed the common law. But we find no constitutional or legislative declaration of any kind on our statute books until the adoption of the Constitution of 1798. We shall advert again to the state of the divorce law as it stood intervening the organization of our State government and the Constitutionof 1798. For the present, with a view to the history of the subject, we affirm that, if there was any action by convention or legislation declaring the law of divorce prior to that period, it has eluded our search. The Constitution of 1798 declares as follows: " Divorces shall not be granted by the Legislature until 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; and, in such case, two-thirds of each branch of the Legislature may pass acts accordingly."

In 1802, four years after the adoption of the Constitution, the Legislature passed an Act entitled, " An Act to carry into effect the ninth section of the third article of the Constitution, " viz.: the section above quoted. This Act prescribes the manner of commencing suit for a divorce, of defending against it, the form of the verdict, and some other unimportant details, but does not attempt the declaration of any legal principles touching the causes for divorce. In 1806, an Act was passed amendatory of the Acts of 1802, prescribing the mode further of prosecuting libels, declaring that divorces should be absolute and partial; making provision out of the husband's estate for the wife and children in case of a partial divorce; prohibiting the offending party from marrying during the life of the other party; requiring a schedule of property to be filed, and disposing of the property in cases of absolute divorce, &c. &c. In this act we look in vain for any declaration of principles. The only further general Act relative to this subject was passed in 1810, simply prescribing the oath of the jury in divorce cases. For all of these acts see Prince, 187, 188, 189, 190. In 1835 the Constiution of 1798 was amended, and in lieu of the 9th section of the 3d article, before quoted, the following became the Constitution of the State, so far as divorces are concerned, to wit: " Divorces shall be final and conclusive when the parties shall have obtained the concurrent verdicts of two special juries, authorizing a divorce upon legal principles." Prince, 911. Such is the Constitution at this day, and such is a brief history of the action of the people of this State on the subject of divorces.

We have now arrived at the consideration of the meaning and effect of the Constitution of 1798. In our judgment the Constitution of 1798 was intended, 1st, to transfer the jurisdiction over divorces in all cases in the first instance, from the Legislature to the Superior Courts; for it provides, "that divorces shall not be granted by the Legislature, until the parties shall have had a fairtrial before the Superior Court, and a verdict shall have been obtained authorizing a divorce." Before 1798 the Legislature had unlimited power over the subject, and we infer that, whether the courts possessed jurisdiction or not they did not exercise it. By the Constitution the initiatory steps towards getting a divorce were to be taken before the courts; the right and the duty of first hearing the cause were devolved upon them, and the Legislature was inhibited from acting at all until there was a trial and verdict before the Superior Court.

2. By the terms of the Constitution, the legislative will was intended to be restrained in its action, upon such divorce causes as thus came to it from the courts, by the requirement, that there should be a vote of two-thirds of each branch before there could be a dissolution of the marriage contract. That is to say, the fair trial and verdict being had, it was competent, (and yet not obligatory,) for the Legislature to grant divorces, provided there was in favour of the application a concurring vote of two-thirds of both branches.

3. The Constitution intended to restrict both the courts and the Legislature, as to their power to grant divorces, to such cases as were grantable upon legal principles. For the Legislature is clothed with power to act only, when there has been in the cases brought before it, a fair trial and a verdict rendered upon legal principles. The Constitution declares that the trial shall be had, and the verdict rendered, upon legal principles, and before the Superior Court; thus making that court the judge of the application of those principles to the cases brought before it. I only remark, in this stage of this discussion, that it must be apparent to the most careless reader, that the Constitution of 1798 is in restraint of divorces; the wise framers of that instrument were careful to hinder facility in their procurement. The prohibitory and restraining character of the article, the fact that these restraints are fundamental, and beyond the reach of legislative caprice or impulse, go a great way to disprove and negative the inferences which the counsel draws in favor of his construction. The amended Constitution of 1835, in a few brief words divests the Legislature of all jurisdiction over divorces, and casts it entire upon the courts; by the fundamental law it belongs now to them, and cannot belong elsewhere. At this point we feel authorized in saying, not only that the legislature has no power to grant divorces, but, until the Constitution is amended, has no power to say upon what principles they shall begranted by the courts. For the Constitution of 1835 not only vests the whole jurisdiction over divorces in the courts, but ordains the principles upon which they shall be granted. The language of the amendment of 1835 is peculiar. "Divorces shall be final and conclusive,...