68 Mass. 285 | Mass. | 1854
A full history of our early law of divorce is nowhere to be found; nor are the materials for such a history readily accessible. Since the time of the province charter, however, thus much is plain: That by St. 4 W. & M. (Anc. Chart. 243,) it was enacted that all controversies concerning marriage and divorce should be heard and determined by the governor and council; that by the state constitution, c. 3, art. 5, it was declared that this jurisdiction of the governor and council, in causes of marriage, divorce and alimony, should continue, until the legislature should, by law, make other provision; that no other provision was made, until the legislature, by St. 1785, c. 69, § 7, directed that all questions of divorce and aEmony should be heard and tried by the supreme judicial court; and that this court has ever since had exclusive jurisdiction of those questions.
In February 1792, the legislature passed a resolve “ for dissolving the bond of matrimony” between the parties therein named. But this resolve was vetoed by Governor Hancock, for the reason that, in his opinion, before the St. of 1785, c. 69, was passed, the governor and council had, by the constitution,
By the English law, alimony pendente lite may be granted. And the argument for the petitioner is, that by conferring jurisdiction in cases of divorce and alimony, authority was conferred to grant all such alimony as the English courts could grant. But we are of opinion that the authority to grant alimony, like the authority to grant divorces, is confined to the cases expressly mentioned in the statutes. And we find that, since the constitution was adopted, all the statutes, which authorize the granting of alimony, authorize it only after a decree of divorce. Sts. 1785, c. 69, § 5 ; 1805, c. 57 ; 1810, c. 119 ; Rev. Sts. c. 76, §§ 31, 32; 1838, c. 126, § 2; 1844, c. 129; 1850, c. 100, § 3 ; 1853, c. 23. The 38th section of c. 76 of the revised statutes, cited in argument, provides a mode of carrying into effect the provisions of the preceding sections, but adds nothing to those provisions. See Wilson v. Wilson, 2 Dev. & Bat. 377 ; Harrington v. Harrington, 10 Verm. 505; Parsons v. Parsons. 9 N. H. 309.
If the power, which the petitioner now invokes, ever existed in any tribunal in Massachusetts, either during the time of the colony or the province, (of which no evidence has been submitted to us,) we are of opinion that it ceased, when jurisdiction of divorces and alimony was transferred to this court, and the cases in which it might decree divorces and alimony were specified. Exceptions overruled.
By St. 1855, e. 137, § 6, “ in causes for divorce depending, the wife shall be entitled to alimony pendente lite.”
