Sparhawk v. Sparhawk
| Decision Date | 25 November 1874 |
| Citation | 116 Mass. 315 |
| Parties | George Sparhawk v. Mary S. Sparhawk. Augustus J. Thompson v. Nancy J. Thompson |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Middlesex. Suffolk. Petitions under the St. of 1874, c. 397 § 1, for leave to marry again. Each petitioner alleged that his wife had obtained from him in 1872 a divorce nisi under the St. of 1870, c. 404, for the cause, in the first case, of extreme cruelty, and, in the second, of cruel and abusive treatment.
Upon the first petition being presented on August 13, 1874, in vacation, with a request for an order of notice by publication, Gray C. J., reserved for the consideration of the full court the question of law whether upon the facts alleged the petition could be entertained. The case was submitted upon briefs.
Petitions dismissed.
G Sparhawk, pro se.
H. G. Parker, as amicus curiae, contra.
In the second case, an order of notice having been issued and returned at September term 1874, it appeared that the petitioner had been divorced as alleged and not otherwise; and Morton, J., found that upon the evidence the prayer of the petitioner ought to be granted, if upon the facts above stated it was lawful so to do, and reserved that question for the determination of the full court.
J. D. Long, for the petitioner.
The question presented by these two cases is of the validity of the St. of 1874, c. 397, § 1, by which the Legislature has enacted that "all divorces nisi heretofore decreed under and by authority of" the St. of 1870, c. 404, "shall be deemed and taken to be, and have the force and effect of, absolute divorces from the bonds of matrimony; and the justices of the Supreme Judicial Court, upon petition filed by the party against whom such divorce has been granted, and upon such notice as the court shall order, may authorize such party to marry again."
The question thus presented for the determination of the court is of the greatest importance, involving a consideration of the constitutional boundary between the legislative and the judicial departments in this Commonwealth, and deeply affecting the rights and duties of many of its citizens; for if this enactment is invalid, innocent persons, who, relying upon its terms, have contracted a new marriage since its passage, may find that their marriage is unlawful; and if it is valid, husbands and wives, temporarily separated, who intend to return to one another, or some even who are actually reunited, may find themselves absolutely divorced, without any petition by either, and perhaps against the wishes of both.
Owing to the importance of the question, the earliest opportunity was afforded to bring it before the full court, and one of these cases having been submitted upon briefs, the subject has been considered by all the judges.
To declare a divorce between husband and wife involves an investigation of a judicial nature. 2 Kent Com. (12th ed.) 106. Shaw v. Gould, L. R. 3 H. L. 55, 91. Whether such a power can be exercised by the legislative department depends upon the Constitution of the state. The authorities elsewhere upon the subject are fully collected and classified in 1 Bishop on Marriage & Divorce, (5th ed.) c. 39, and in Cooley on Constitutional Limitations, (3d ed.) 109 & seq. But it is unnecessary to consider them, because the provisions of our own Constitution are decisive.
The 30th article of the Declaration of Rights prefixed to the Constitution declares that in the government of this Commonwealth the legislative department shall never exercise the executive and judicial powers or either of them. The third chapter of the Constitution, entitled "Judiciary Power," contains this article: "All causes of marriage, divorce and alimony, and all appeals from the judges of probate, shall be heard and determined by the Governor and Council, until the Legislature shall by law make other provision." The word "causes" is evidently here used as equivalent to "controversies" or "cases;" and the terms, as well as the position of this article in the Constitution, manifest the intention of the people, in establishing a frame of government, to commit the hearing and determination of all cases of divorce and probate appeals to the judiciary only. The reason for temporarily entrusting the jurisdiction of these matters to the Governor and Council doubtless was that it had been vested in them under the Province Charter.
The probate jurisdiction was reserved to the Governor and Council by the terms of the Charter itself. One of the earliest acts of the General Court of the Province provided that "all controversies concerning marriage and divorce shall be heard and determined by the Governor and Council;" and another act, not long after, authorized them, upon proof of long absence of a husband or wife without being heard of, to declare that the other party should be deemed single and unmarried, and to grant leave to that party to marry again. Prov. Sts. 1692-93, (4 W. & M.) c. 25, § 4; 1698, (10 W. III.) c. 19; 1 Prov. Laws (State ed.) 15, 61, 354; Anc. Chart. 32, 243, 322. The Governor and Council having been thus constituted a Supreme Court of Probate, and a court for the decision of cases of marriage and divorce, their proceedings as such, though not according to the course of the common law, were judicial, and were determined by a vote of a majority of those present, even if the Governor was in the minority. This was settled by the Privy Council in England, after long differences between the Governor and the Council of the Province, as appears from a message of Governor Hutchinson and the answer of the House of Representatives in 1774, the material parts of which are printed in a collection of Massachusetts State Papers, 1765-1775, published in Boston in 1818, 410, 411. See also Message of Governor Pownall to the Council in 1760, Quincy, 573; Peters v. Peters, 8 Cush. 529, 541.
The only instance, known to us, in which the Legislature of Massachusetts passed an act dissolving a marriage, since the Province Charter and before the adoption of the Constitution, was during the Revolutionary War, after the departure of the royal Governor and Lieutenant Governor, and while there was no court in the State authorized to grant divorces. St. March session 1780, c. 7; Mass. State Laws, 1775-1780, 287.
The Legislature, in the execution of the power conferred upon it by the Constitution of the Commonwealth, provided by the St of 1783, c. 46, § 3, that this court should be the Supreme Court of Probate; and by the St. of 1785, c. 69, that all questions of divorce...
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