SELFISH INTENTIONS - K-REx - Kansas State University

perhaps so they could control the numbers of divorces and types of pleas.” 32 Common reasons
behind requests for divorce in Virginia include adultery, giving birth to a mulatto child, cruelty,
and abandonment.
With the exception of South Carolina, other southern states also accepted the practice of
legislative divorce. Riley contends that this was not as big of a departure from English Common
Law as one would think. She argues, “This was not the break from English practice that it
appears to be, for beginning in 1670, the English Parliament began to grant infrequent absolute
divorces. Southern leaders replicated this practice by limiting the power to grant divorces to
state legislatures just as English practice limited divorce jurisdiction to Parliament, the national
legislature.” 33 Maryland was the first state to grant a divorce in the post-revolutionary period.
The Maryland state legislature established the precedent of legislative divorces in 1790 when
they granted a divorce to a couple when the wife gave birth to a mulatto child.
Legal scholars questioned whether legislative divorces violated the contract clause of the
Constitution, which impaired legislative involvement in the obligations of contracts. As
VanBurkleo puts it, “Although lawyers disagreed about the clause’s application to public
agreements, few doubted that it proscribed meddling with the rights enshrined in private
contracts, of which marriage seemed to be one type. If divorce acts altered or destroyed property
rights, moreover, they might run afoul of constitutional prohibitions against ‘takings’ and ex post
facto legislation.” 34 As early as the 1810s, scholars debated this issue. In 1819, Supreme Court
Justice Story mentioned this debate in his dissenting opinion in the Dartmouth College v
Woodward case. While this case did not mention divorce, it focused on the contract clause of the
32 Ibid., 56.
33 Ibid., 55.
34 VanBurkleo, 69.
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