Wright v. Wright's Lessee

Tuck, J., dissented in part, and delivered the following opinion. The first inquiry which this record suggests is, whether the act of 1849, ch. 428, divorcing these parties, was a valid exercise of legislative anthority? If this be so, then the appellee is entitled to recover, because, for the reasons stated, and upon the authorities quoted in the opinion of the court, the property in controversy, on the dissolution of the marriage, reverted to the wife. But after carefully considering this question, and with every disposition to sustain the acts of a co-ordinate department of the government, I have not been able to persuade myself that it's legitimate powers have not, in this instance, been exceeded.

It is unnecessary, in my view of the case, tó inquire what effect the act of 1841, ch. 262 had in restraining or limiting the power of the legislature in the matter of divorces; nor is it material to examine whether the acts of 1829, dh. 202, and 1840, ch. 238, prescribed directions which it was incumbent on the legislature to pursue in the exercise of this jurisdiction. I admit that divorces in this Slate are to be considered as regular exertions of legislative power, 1 Gill $• John., 474, but I do not agree that the courts of justice must always presume that it has been rightfully exercised, and with a due regard to the rights of the parly against whom the application ⁴⁴² may have been made. Acts of Assembly like the proceedings of other branches of the government, should be supported by every fair legal intendment; and, therefore, it would be the duty of this court, in the absence of proof to the contrary, to presume that the act in question was passed under circumstances which afforded the appellant an opportunity of protecting his rights. But how can this presumption arise on the present case stated, when it contains a distinct admission that he had no notice of his wife’s application for a divorce, and consequently could not have defended himself under the charge alleged against him?

It is said, that the legislature may pass such laws as are not prohibited by the constitution of the United States, or by that of the State; but I imagine, that these instruments do not furnish the only limitations. In the case of The University of Md., vs. Williams, 9 Gill & Johns., 408, this court said, “Independent of the constitution of the United States, and of any express restriction in the constitution of the State, there is a fundamental principle of right and justice inherent in the nature and spirit of the social compact, (in this country, at least,) the character and genius of our government, the causes from which they sprang, and the purposes for which they were established, that rises above and restrains, and sets bounds to the power of legislation, which the legislature cannot pass without exceeding its rightful authority. It is that principle which protects the life, liberty and property of the citizen from violation in the unjust exercise of legislative power.” See also 2 Kent Com., 339, 340, and notes, which show, that this right to protection exists, independent of any constitutional provision, as founded in natural equity, and as an acknowledged principle of universal law. The same principle, in my opinion, may be invoked for the protection of any other rights of the citizen: and what can be more valuable, or should be more cautiously interfered with, than those growing out of the marriage relation? “A man has just as good right to his wife as to the property acquired by the marriage contract He has a legal right to her ⁴⁴³ society and her fortune, and to divest such right without his default, and against his will, would be as flagrant a violation •of the principles of justice, as the confiscation of his own estate.” Per Justice Story, 4 Wheat., 696 .

And, indeed, it is on the principle of the inviolability of the contract of marriage, that divorces are granted notwithstanding the 10th sec. of 1st .art. of the constitution of the United States, “because a law punishing a breach of contract by imposing a forfeiture of the rights acquired under it, or dissolving it because the mutual ■obligations are no longer observed, is in no correct sense a law impairing the obligations of the contract.” 4 Wheat., 696 . There is no species of contract, or right, or property, that is not protected from legislative invasion. Even when the public .interests require a sacrifice of private property, it cannot be taken without making just compensation to the owner. 2 Kent Com., 339. Yet this court are now called upon to declare that the legislature may, on the application of one of the parties to a marriage, and without the knowledge of the other party, dissolve that relation, and, as a legal consequence of the dissolution, divest rights of property acquired by the contract of marriage.

If this power resides with the legislature in this unlimited degree, may we not ask for its origin. Tn the case of Crane vs. Meginnis, 1 Gill & Johns., 474, we are told that these acts have been .“performed by the legislature for the want, perhaps, of ecclesiastical authority to effect if, or borrowing, perchance, the power from the parliament of Great Britain, which sometimes granted divorces a viñado for supervenient causes arising ex post facto, a thing that the spiritual courts could not do.” It is immaterial to the question before the court ■whether the. jurisdiction be referred to the one source or the other; for in either case, it seems to me, that all the analogies that belong to the subject should be observed, and that the forms of proceeding adopted in the ecclesiastical courts or in parliament, for the purpose of properly and advisedly exercis- . ing the power, or some such, should be regarded by the legislature when acting in cases of this kind. The ecclesiastical courts of England, whose functions, pro hac vice, the le ⁴⁴⁴ gislatqre performs, would not act unless both parties were before the court, or had had an opportunity of appearing; nor does the parliament in its omnipotence, as Blackstone extols its authority, sever these bands upon bx parte proceedings. On the contrary the utmost circumspection is observed, by notice to the other party, and otherwise, l,est this estate, which is not to be entered into unadvisedly or lightly, may be inconsiderately destroyed by the exercise even of their sovereign authority, which is said to have no limit, We are told, that a law which professes to act only on the person—such as an act of divorce—pass.ed without notice, may be valid, when one so pass.ed, affecting property, would be void.

Can this be so? Are not rights of person as sacred as those of property ? and if so, why shall not the same forms and solemnities be required in the enactment of statutes affecting one as well as the other? But if there be such a distinction, can it apply to this case? The legislature cannot commit a wrong indirectly whifch could not be accomplished by direet means.

If this act contained any provision as to the property of the parties it would be unconstitutional. 1 Gill fy Johns., 474. ’ It, in terms, professes only to separate the parties by á dissolution of the marriage; but the necessary le.gal effect is to divest rights of property acquired under the marriage. Those rights are thereby as much impaired as if they were destroyed by the very letter of the law. In the case pf Norris vs. Abingdon Academy, 7 Gill Johns., 7, it was held, that a resolution of the legislature transferring the govern:ment of the institution to a new board of trustees, was an interference with the vested rights of the old board, and void. The resolution did not profess to act upon the property or funds of the school, but the necessary effect of the new appointment was to transfer the property also.

If an act, which in terms makes provision for the wife, however moderate the amount, would be void, I think the same objection may be urged against one which, by necessary legal consequence, takes the property of the wife from the husband and restores it to her. ⁴⁴⁵ It was also contended, that there was no infraction of the 21st art. of the hill of rights, in the passage of this act, because, if the appellee succeeds, the appellant will have lost this property by the finding of a jury, and in pursuance of a law of the land. We are informed by the Court of Appeals, in 9 Gill §- Johns., 412, what is understood by these terms. “They mean by the due course and process of law; the general law prescribed and existing as a rule of civil conduct, relating to the community in general, judicially to be administered by courts of justice. An act which only affects and exhausts itself upon a particular person, or his rights, or his privileges, and has no relation to the community in general, is rather a sentence than a law; a sentence that condemns without a hearing, and the very passing of which implies the absence of any general law or rule of civil conduct by which the same purpose could be judicially effected in a court of law.” 1 Bl. Com., 44.

Does it require any argument to show, that an act of Assembly, divorcing a man from bis wife passed on allegations of gross misconduct on his part, and without his knowledge, is a sentence and not a law, in the sense in which we are now dealing with the term? Does it not exhaust itself in the particular case to which it applies, and, in the one before us, is it not a sentence which condemns without a hearing? If the views presented on the part of the appellee are correct, the marriage tie, constituting a contract of the highest dignity, and of all others the most important to society, is the only one which can be dissolved; and the consequences of that measure, embracing the relation of husband and wife, parent and child, and valuable vested interests, visited upon the supposed offending party, without affording him an opportunity of asserting and protecting his rights when thus assailed. 1 know of no other species of legislation, or act of any tribunal affecting individual rights which would be sanctioned in a court of justice, if objected to for want of such notice, or what would be deemed equivalent to notice. “They are in violation to the first principles of justice, and null and void.” 2 Kent Com., 109. ⁴⁴⁶ I am of opinion, that the judgment should be reversed, but as a majority of the court has decided that this act of Assembly is valid, I concur in so much of their opinion as restores the property in question to the appellee. Le Grand O. J.., delivered the opinion of this court.

This was an action of ejectment instituted in Queen Ann’s county court to recover a tract of land. It was tried on a statement of facts, and judgment rendered by the court below in favor of the appellee. The statement of facts is as follows: “It is admitted by counsel for plaintiff and defendant, that a patent regularly issued for the tract of land mentioned in the declaration filed in the above cause; that a certain Robert Gardner was seized in fee of the land; at the time of his death in the year 1828; that the said Robert died intestate of said land, &c.; that the same descended at his death to his daughter, the plaintiff in this cause, who was his only child and heir at law; that the said Jane after the death of the said Robert entered upon, and was seized in fee of the said land, and so continued to be seized in fee of the same; that on (he 10th day of May, in the year 1835, the said Jane intermarried with Samuel J. Wright of Queen Anne’s county; that the said Jane and Samuel lived together after their marriage for many years, but that there never was any issue of the said marriage; that the said Samuel has held possession of the land aforesaid, from the time of the said marriage to the present time; that on the 29th of April 1845, the said Jane exhibited in Queen Anne’s county court, sitting as a court of equity, a bill against the said Samuel J. Wright, praying to be divorced from him the said Samuel, and to be restored the possession and enjoyment of her maiden property, real and personal; to which said bill the said Samuel filed his answer in said court, on the 16th of July, in the same year 1845; and in which said case no further proceedings were had, until the May term of said court, in the year eighteen hundred and forty-nine, when the said Jane ordered the same to be dismissed; that at December session 1849, the said Jane presented to the General Assembly of Maryland, her petition, praying for a divorce, which petition ⁴⁴⁷ set forth the facts hereinbefore stated, and alleged the adultery of her said husband, and his desertion of the said Jane for several years; and that at the said session of the General Assembly of 1849, a bill was passed divorcing the said Jane from the said Samuel, as follows: “ ‘An act to divorce Jane E. Wright, of Queen Anne’s county, from her husband, Samuel J. Wright. “ ‘ Be it enacted by the General Assembly of Maryland, that Jane E. Wright of Queen Anne’s county be, and she is hereby divorced from her husband, Samuel J. Wright, a vinculo matrimonii.’ ” That no notice of the said proceedings before and by the said legislature was given to the said Samuel; that the said Samuel never had nor has he now,-any interest in the said land,-other than such right or possession as he acquired by virtue of the said marriage; and that he has never made any provision for the support and maintenance of the said Jane. That the said Samuel J. Wright- is in possession of the said land. ’ ’ The first question which arises out of this state of facts, involves the right of the legislature to pass the act of 1849.

It is said that since the passage of the act of 1841, ch. 262, the legislature has been incompetent to take cognizance of cases of divorce, and, that all authority over such matters was by that act exclusively vested in the high court of chancery, and the courts of equity. If this be so, then the act of 1849 was, and is, unconstitutional and void. According to the earlier law of England, a marriage valid at the time of its solemnization was held to be indissoluble. Conjugal infidelity only furnished a ground for separation, but nothing short of death could release the nuptial bond.

A complete annulment of the tie could only be' obtained by the establishment of some antecedent impediment, such as undue consanguinity, physical incompetence or mental incapacity. Until about the commencement of the eighteenth century the ecclesiastical courts exercised exclusive jurisdiction over the subject of divorces. The ecclesiastical courts refusing to grant divorces a vinculo, even in cases of the grossest conjugal delinquency, induced applications to parliament, and, it is ⁴⁴⁸ said, the first genuine example of a dissolution of the nuptial tie was in the case of the notorious mother of the highly gifted but unfortunate poet, Savage—the Countess of Macclesfield. Since that time the parliament have exerted the power of annulling, absolutely, the marriage bond.

In the case'of Crane vs. Meginnis, 1 Gill and Johnson, 474, the constitutional power of the legislature, under the old form of government to grant divorces was fully recognized. “Divorces,” say the court in that case, “in this State, from the earliest times, have emanated from the General Assembly, and can now be viewed in no other light than as regular exertions of legislative power.” This exercise of power may have grown' out of the circumstance of there being no ecclesiastical courts within the limits of Maryland, or may have been borrowed, by analogy, from the action’of the British parliament, which from the commencement of the eighteenth century, exercised the power of granting divorces a vinculo, for causes supervenient the marriage. The granting of divorces being but a “regular exercise of legislative power,” the next inquiry is,—what effect had the act of 1841, chapter 262, on that legislative power? The first section of the act provides, that from and after its passage, “the chancellor or any court of this State, as a court of equity, shall have jurisdiction of all applications for divorces,” and the second section specifies the grounds on which divorces a vinculo matrimonii, may be granted. They are, first, the impotence of either party at the time of the marriage; secondly, for any cause, which, by the laws of this State, renders a marriage null and void ab initio;- thirdly, for adultery; fourthly, where the party complained against has abandoned the party complaining, and has remained absent from the State five years.

By the act of 1844, chapter 306, the courts aré authorised to decree divorces in Cases where the abandonment has continued uninterruptedly for three years. It is contended on the part of the appellant, that this legislation divested the General Assembly of all power over