The weekly Panola star. [volume] (Panola, Miss.) 1857-1881, 1866-12-08

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demurrer n'iinel snd Petition III.
missed hero
Elizabeth ! larson gs Andres
arson Aprfal from tho Chanrrp
Court ~ Wellington oouniy
Justice EIlcit delivered ile orin
lon Of The Court
An aci NJ The Legislature, ap.
proved fcbmafy p 1880 provided
THAT 20 all ease. where paftIes have
prior Ia Tic passage of ikis aa lived
'epamle and ,purt for the period ol
tmr years. within THE STATE. and
either Of them may desire ip bo Nj
ynrccd from the bonds NJ mltrlmopy
aud have not lived separate and a uri
IN collusion, and with the intent ol
procuring divorce. II shall be- uw
~ for them, or either Of them To- G,c
a bill setting forth such desire and
upon due proof Of such living scpa.
rate and apart, il shall he competent
Tor The court to decree divorce from
The bonds Of matrimony. Acts Of
1860, y. 202.
The bill in this case shows that thc
parties had lived apart by mutual
consent, under articles of separation.
for more than four wears before the
passage OF the act. A demurrer to
the bill was oycrrulrd; and the
only question raised here is. whether
the above act Of the Legislature is
valid; the ground on which il is as
sailed being that it impairs the obi
CATION of the contract by marriage.
Marriage undoubtedly, to q certain
extent, is a civil contract. The OBJ
servation o. Sir William Blackstone,
THAT our law considers marriage in
another light than as a civil con-
tract is, however, made with ref
erence to the jurisdiction which the
courts of common law exercise over
the subject, as contralistingu;shcd
from the holiness of the matrimonial
state, and the siniulncss of unIuwrnl
marriages, which fall under the j.
madversion of the spiritual courts.
We have decided at the present
term, in the case Of Magce aud vii"
VS.. Young, that marriage itself, as Il
personal relation between the parties,
Is not a matter Of contract within the
meaning Of the constitutional pro-
visions IN reference 10 the invlolabili-
" of contracts. We regard mar
riage as civil status, matter JuJiice
juris, created by public law, subject
to the public will, and not to thai of
the parties, who cannot dissolve il by
mutual consent. That il il more
than contract, because il establishes
fundamental domestic relations ailcc' :
ing the welfare of the community.
and because il is an institution nf l'"
State, founded on reasons of public
policy. We have in effect recognized
the proposition asserted by Chief
Justice Marshal in the Dartmouth
College case, that the clause in the
Constitution respecting the obliga-
tlon of contracts has never been un-
derstood to restrict the general right
of the Legislature to legislate on the
subject of divorces The same
clause is found in our own State
Constitution, and it also contains the
further clause in reference to this
particular subject, that "Divnr,cs
from the bonds OF matrimony shall
not be granted but in cases provided
for by law, by suit in chuncery."
While this clause plainly prohibits
the Legislature from granting d.
vorces from the bonds Of matrimony,
II, by necessary application, au-
thorlzes il TO provide by law in what
cases such divorces may I've obtained
in the courts of chanccry.
The only remaining inquiry i,
whether the Legislature may author
ize divorces 10 b. granted for e. USES
happening before the passage Of the
act, and which at the time Of their
occurrence were lawful and innocent.
and furnished no ground for such 4
proceeding. Such Legislation cannot
be too strongly condemned as unwisc,
impolitic, aud unjust. If this werr
criminal law, and undertook to
punish as q crime an act which was
indifferent at the time Of its per
t0rmancc, il would be void a. crpos
tdcto. But il cannot be regarded ~
an act Of that character, and il i'm
pairs the obligation Of no contract,
and divests M vested rights. II is
only obnoxious to the objection that
II Is wholly re respective in iis opera
tim. Such statute partakes in it,
character of the mischief Of an erJ,os,
ldcto law, u to all cases Of crime,
aud penalties and in matters reIat-
ing to contracts or property, violates
every sound principle.
Courts Of justice always express
the strongest disapprObation Of .u,lt
legislation, and will never be per-
suafed that the Legislature intend.
to Civ retrospective effect to it,
enactmcnts, without the cles est aud
mn~t positive expression OF such a
purpose. But where au act il, like
the present, retrospective only, and
purports 10 operate alone uInn act