The Anderson intelligencer. [volume] (Anderson Court House, S.C.) 1860-1914, 1869-09-02

or cruel husband /?

1S not Ine 'Hecesoity 40 gov w va
ercise this jurisdiction of declaring q
s'nullity of marriage" where the revolt,
ing fact is exhibited of an incestuous
marriage between father and daughter
mother and son, sister and brother I OF
to grant divorce vinculo mdtrimonil to
an injured and outraged wife, whose hus
band had introduced iuto his house and
seated at his table sable paramount
who shared his bed and received his at
tentions, while the unotfending wife re-
ceived the crumbs and suffered the indlg'
mites and abuse heaped on her by the
faithless husband and his degraded mis-
tress? Such were substantially the facts
in the case of Jelineau vs.. Jelineau, 2
DeS., E. r. As, and the Court, in the
graphic language OF Bishop on Divorce
and Marriage, 2SS, refused ''to sever the
living body from the putrid carcass" and
exhausted the powers of the tribunal by
decreeing, simply, that the husband should
maintain the wife he had no shamelessly
wronged
Chancellor Kent, in an able opinion de.
livered in the case of Wightman vs.
Wightman, 4 Johnston, c. r. 343, reach.
es a conclusion exactly the reverse Of
that decided by the Court in this State
He holds that no legislative authority is
needed to confer Jurisdiction on the
Courts of Equity in Divorce cases-tnat
the power in the Court is inherent lie
saws: Gall matrimonial and other causes
of Ecclesiastical cognizance belonged
originally, to the temporal courts; and
when the. spiritual courts cease the cog
nizance of such cases, it would seem, as
of course, to revert back to lay tribunals
Divorces vincuzo,' says Lord Coke,
are causa metus, cauSa impotentie, causo
ahnitatis, causa conSanquinitdtis, &c.'-
These causes, and that of lnnacy, are not
within the Statute IN. ~ giving to this
Court jurisdiction concerning divorces
Notwithstanding that fact, the learned
Chancellor says, that the Court OF Equity
ais competent, not merely collaterally,
but by suit instituted directly and tor
the sole purpose to pronounce a divorce
in such cases."
Whatever opinion may be entertained
of the soundness of the judicial decisions
or the practice of the Courts in this State
on divorce heretofore, oil doubt is now
removed by the explicit language of the
new Constitution. Article w., Section
Is, provides that "the Courts OF Common
Pleas shall have exclusive jurisdiction in
all cases of divorce" &C.; and in Sec. l6,
sit shall have jurisdiction in all matters
of Equity" &c. Article ii, Section 8
provides that divorces from the bonds
of matrimony shall not be allowed but by
the Judgment of court, as shall be pre-
scribed by law" 1t has been suggested
that this clause restrains tine courts from
exercising the jurisdiction conferred in
the fourth article until the General AS
semby shall by statute prescribe the
causes respectively, for partial and entire
divorces and the rules and practice in the
same. If thereafter" had been inserted
in the latter clause of the section 80 as to
read "as shall hereafter be prescribed by
law" such construction might have been
admissible, but the language used, and
properly used, in Constitution, which
must define general propositions, embra
ces the existing laws, as we'll as amend
ments and notifications hereafter TO be
made by the Legislature. The object OF
this section, when ascertaned, will re-
move all doubt as to its proper censtruc.
ton. The Convention framing the Con-
stitution, profting by the experience OF
other States where Legislative divorces
have been granted, and where caprice,
favortism and importantly controlled the
enactment in disregard of all general
principles of law, and oftentimes totally
inconsistent with the previous acts of the
same body, intended to prohibit all di,
vorces by the notwithstanding the
power exclusively in the courts, which
would be bound to decide such cases con-
formally to settled principles of law.
Divorces are to be granted conformably
to law, and not by Legislative caprice.
If the phraseology of the section had
been "as now prescribed by law" it
would have precluded the Legislature
from amendments in the future; if "as
may hereafter be prescribed by aw," it
would have excluded the enforcement OF
the existing law by the courts. and there
by defeated the grant of jurisdiction con.
tanned in the fourth article The word
"law" in the section embraces ecclesiasti-
cal and common law as we'll as statute
law. If the section should be construed
to refer alone to law hereafter to be enac'
ted by the Legislature, it excludes all ex,
cept statute law. The phraseology Gov
ers what was intended by the Convcn,
ton, that the courts in determining di
yorcc cases should be governed by the
existing common law and such statute IT,!
laws as may hereafter be enacted. The
phrase could not be constructed more per,
spicuously to embrace existing law and
future enactments Any other construc-
ton defeats the other provisions of the
Constitution giving present jurisdiction to
the Court of Common Pleas in all cases
of divorce, and is in palpable conflict with
Tho wall auto hlisbed rule of construction