Public issues, private lives: the evolution of divorce law in Maryland

On Maryland History

December 03, 1990|By Peter Kumpa

THEY COULDN'T get along. Perhaps they couldn't abide each other. So in 1805 the Worcester County couple took the only action open to them. They petitioned Maryland's General Assembly for relief. Ely Hosier "prayed" that "a law may pass annulling his marriage with Patty, his wife." For her part Patty asked "to be released from her marriage with Ely Hosier."

The two Hosier petitions were referred to a special committee. Four days later, the committee rejected both requests. No divorce. Itgave no reasons. It didn't have to. The lawmakers didn't give reasons when they dissolved marriages, though a legal student might guess that adultery, or at least gross forms of it, and bigamy were pretty good bets for favorable consideration. Even that wasn't certain.

Until 1841, when the legislature finally granted jurisdiction to the court, divorce was one of the most troublesome and murky areas of Maryland law.

When Maryland was first settled, English divorce cases were handled by ecclesiastical courts. They were the equal of civil courts and had jurisdiction over the affairs of the clergy and those of the laity in what was said to be "the health of the soul." Most of the divorces granted by the church courts were known as a mensa et thoro, from bed and board. They amounted to judicial separations. They did not allow for remarriage.

In a few cases, divorce was a vinculo matrimonii, from the bonds of matrimony, and therefore absolute. But these were always for reasons that impaired a marriage, like bigamy, impotence or failure to consummate a partnership. They amounted to annulments, not divorce in the modern sense.

As Maryland had no ecclesiastical court, no annulments or divorces were possible. This gap was recognized from the start. In 1638, the assembly considered legislation to give county courts jurisdiction over "all causes matrimonial," but did not pass it.

When Parliament began granting some divorces in special cases, Maryland's legislature kept up by agreeing to consider a divorce petition in 1701. But until after the Revolution, there were no true divorces granted.

The first one was given to a husband in 1790 whose wife had been convicted of adultery and bearing an illegitimate mulatto child. Lawmakers then began granting more divorce petitions in cases of adultery and bigamy, usually looking for a previous conviction in the courts.

It wasn't until 1807 that at least two divorces were granted for incompatibility. The reasons included intoxication, failure to support and cruelty. But this did not appear to set a sure and certain legislative policy.

The problem was that the legislature never spelled out the grounds for divorce. It simply acted on a petition, sometimes granting it, sometimes declining and never saying why. And there was one period, from 1817 to 1826, when it granted only separations but not absolute divorces.

What went on in the divorce committees? Only the lawmakers XTC themselves knew. Their deliberations were not made public. The official journals carried the bare bones of a decision and nothing else.

Even when cases reached the floor for debate, no formal record was kept. And the press, which followed the General Assembly closely, did not provide details on divorce matters, listing only petitions and the results. In 1841 for example, The Sun's Annapolis correspondent noted there were "several hours" of debate on the attempt by Celeste Elliott of Baltimore to divorce her husband, Henry Elliott. Several lawmakers took the floor to commend the husband's good character and devotion to morality. Whatever complaints his wife might have had were not reported, though she lost her case.

Divorces were treated flippantly by the press. One of the longer reports in The Sun in 1840 read in full: "Among others who are petitioning for a divorce, Mary Smith came forward today, asking that a contract between her and John Smith may be broken. I could not learn which of the John Smiths it was; the legislature must be careful that they do not cut in twain the wrong John and Mary."

In another 1840 case, The Sun's reporter played with words: "A petition for divorce," he wrote, "was presented from Thomas Page of Baltimore. Mr. Page is a colored man, and wants to turn a new leaf." When the legislature debated the divorce problem a year later, The Sun's correspondent wondered if it had the "capacity" to handle "that which God hath put together." He added that the debate, "not unlike the times and the weather, is dull and uninteresting."

Lawmakers took a verbal beating from the press on many matters. Near the end of the 1841 session with legislation piling up, The Sun wrote:"The legislature of Maryland may truly be compared to the foolish virgins. Now that they have slumbered and slept, totally regardless of the future, they are heard to exclaim: 'Oh, for a little more time,' but its now too late."

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