Indiana State sentinel. [volume] (Indianapolis) 1841-1853, 1847-01-07
From the Cambridge Reueille.
legislative Divorces.

State Legislature on the subject of Divorces.
The House of Representatives at an early day In
the session made solemn resolve that IT uncon
siitoaal for the Legislature TO grant divorces be-
cause that power, they believed was vested in the
Judiciary. Now, it TO US, that even admitting
that that power belongs to the courts erctuSiuey,
(Which BY the way should be very 10th seriously
to admiD that the Legislature exhibits itself IN very
ludcrous light to assume right, that is exclusively
by the Constitution delegated to the Judiciary, that OF
deciding what is constitutional and what is not. D-
yorces granted by the Legislature are either constu-
tiona or they are not. If they unconstitutional
then it belongs exclusively the Judiciary 10 declare
them so, and certainly rot to the Legislature.
Again admitting that the Legislature has the right
to decide the most abstruse and thin divisions OF
constitutional power, how shall they expect to arrive
at a correct Judgment on the subject of divorces,
which is named in the Constitution, even al
uded TO in the delegation OF powers Who OF that
body has made constitutional law his study !!
What number have qualified themselves to cast their
votes for the resolution referred to- with full know
ledge of the powers conferred by the Constitution
1t has been seriously argued in the Senate that the
marriage contract is civil one and that if the Legs-
ature had power to dissolve that contract, they had
also power TO dissolve any other contract! No one
will deny that the marriage contract is civil one,
but it by follows that it is such that the
Legislature may not dissolve. Other contracts are
entered inio which have prescribed form by law,
but depending wholly upon what the parties may OBJ
gc themselves to perform, then If one party fulns
his obligation and the other refuses TO do so, the
courts will compel him. This is all right In COM
mercal point of vew where the terms of the contract
is settled by the agreement of the parties and con-
sideration is passed But what court has the power
to compel the husband to love- cherish and protect his
wife What court has the power to compel parties
to comply with the of their marriage contract
by what means shall the husband be made to cher
sh in sickness and in health, he has ciyllly con-
racted TO do, if he thinks proper TO abandon her, and
leave her upon the charity of the world In this
point of view the marriage contract is not civil one
that may be enforced by the courts other contracts
Surely no Legislator who wishes to maintain repu-
tation for sound judgment can regard it as civil
contract that may be enforced by the courts. The
courts have the power when party fails to perform
the duties which by the marriage contract he obliged
himself to do, to release the other party from the
obligation she had agreed to perform and thus dis
solve the contract But certainly does not follow,
because courts have this power that the Legislature
has not the same power.
The marriage contract is not like unto any other
civil contract. The Legislature has made for it
special proyision-has prescribed solemn forms with
certain requisites and the parties to CHERISH
protect, &c as long as they shall live, and this
tract is made by Legislative enactment matter of
Record. Thus the Legislature prescribes kind OF
contract under which parties may legally marry, and
if they do not comply with that form the contract of
itself void. And only d. they prescribe the man
but they describe the color age and qualifications,
generally of those who shall be allowed to marry to-
gether. Then, if after they have set forth all the
requisites to make marriage contract valid they
have constitutional power to render that contract
void for noncompliance with Its requisites, they
must be poweress indeed.
The Legislature has enacted that all contracts re-
ating to reality shall be reduced to writing and signed
by the parties-this is form, but noncompli-
ance with its acquisitions render all such contracts
void Then why shall not noncompliance with the
acquisitions of the matrimonial contract render ii void
also, and what clause is there in the Constitution to
prohibit the Legislature from declaring it so.
1t will be perceived that although the marriage con-
tract is civil one, it is based the prin-
ciples nor the same policy of commercial trans
action. Nor can the clause in the Constitution in
relation to mpairing the validity of contracts be
tortured into construction applicable to marriage
contracts unless such contract has been entered into
as commercial arrangement, with rights, privileges
&c. reduced to writing and signed by the parties and
in these there has often been Legislative inter-
ference without any grave constitutional scrupes.
But it seems the present Legislature has by reso-
iutions committee reports, and otherwise, decided
soemnly that all the former Legislatures of Indi
ana and of other States ignorant of their duties
and constitutional powers and In granting divorces
violated their oahs to support the Constitution. Pre-
posterous Men Of sense can but feel the utmost
contempt for such conclusions. But we hope the
I
been merely action of policy-not serious.
We recollect when Joseph @. Marshall, Richard
w. Thompson, Samuel w. Parker Thomas D. Wal
pole, Caleb B. Smith and such legal gentlemen as
these members of the Legislature of Indiana,
that divorces granted without constitutional
scrupes. And for the very good reason that these
gentlemen above raising such fimSy objections,
for the sake of getting fees to obtain divorces from
the Circuit Court. But almost every pettifogger
who has fee in prospect should the Legislature refuse
TO grant divorces, is raising hue and cry to the
constiutonallty of that body granting them
If this doctrine is to prevail, every person who has
married under Legislative divorce is liable 20 ndict
ment for Blgamy, one among the highest offences
known to laws. For if the act granting divorce
UNCONSTITUTIONAL it is of itself void and void things,
says an eminent jurist, are no things. Then again
there will be fine field for litigation with respect to
the legitimacy and heirship of children born under
these marriages Is the Legislature prepared to say
that all children born under these marriages ie-
gitimate and Inherit and that all persons
rying under Legislative divorces guilty of Bgamy,
and liable indictment and punishment in our State
Prison. 1t must be prepared to say this, before refus
ing grant divorces constitutional grounds For
be it remembered that Legislature nor Court has
the power to legalze any past act that is unconsttu
tional We have already noticed this subject further
than we intended in the commencement. We have
fallen progressive times, and In conclusion must
express the hope that Legislature will progress
so far as to declare the Constitution itself unconstitu-
tional.
A FandangO.
correspondent of the Boonsville (Mo.) Times,
writing from Santa Fe gives the following unpoeti-