The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1866-11-22
Elizabeth j Carson J
[ 1888 ! e.
Andrew Carson
ippedi from he Cbaucoy Court Of Baghing'oR
county


Mn JUSTICE ELLEfr DELIVERED TUE oflNioN
or lllE COUNT
An act of the Legislature approved Feb
runry 9th, 1860, provided " that IN al eas,h
where parties have, prior to the passage oi
this act, lived separate and apart Tor the pc
Rod Of four years, WITHIN lliiA otai', an"
either of them may desire TO he divorced
from the bonds of atrimony, ana nave nor
lived separnte and apart IN COLLISION, ana
with the intent of procuring divorce, II
shnIl bp lawful for them, OF either Of them,
To flo "A bin setting forth such desire ana
unou due proof Of such living separate
,ate aud apnft. Il shall be competent Tor tho
Cont 10 decree u divorce from the bonds OF
mnfrimuny ." Arta al 1910, p. 2U2
Tho Hill in this case shows that the parties
hntt lived snuart hy mutual consent, under
..tlcl.a or sennrntton. for moro than four
yenra bpfarp tho passage of the act A De
muftpr to the bill was oNerruled hnd the
only question raised here ~, whether the
nboyo act Of the Legislature rs Nhlld the
ground on which It s assaulted being that II
| mpaitA tho obligation of the contract ny
marriage.
Marriage, undoubtedly, To . certain extent
! Is civil contract Tho observation Of Sii
William blackstone, chat our law considers
| oontrnrt !" Ia however made with reference
| "a tho jurisdiction which the courts of com
| mnn law exercise over the subject, is contra
di.tfnguished from the holiness of the nbtf
| moninl state. and the snlulncss OF unlawful
marriages, which fall under the aninadNoi
sion of the spiritual courts
| We have decided at the present term, hi
the rnse Of Mnpee aud wife vs., Young, that
marriage itself, ~ a personal rotation ne
tween the parties, s not matter ol c"htfa'i
| within the meaning ol the constitutional
| provisions in reference to the luNlolahilll
81 contracts We regard marriage rs n ciNl|
status, "a mnttcr pubitet iuis, created by pa"
lie law. suhitrt to the public VIII, aud not Ia
that of the parties. who cannot dissolve II
Ia mutual consent That II ia moro than q
contract because IL establishes fundamental
domestic relations affecting the welfare o
the community. aud because II ~ an institu
tion uf tho State. founded on reasons at pub
llrpoliev. shave m effect recognized the
prnpo.ition asserted hy Chief Justice Mar
shall In the Dartmouth College case, thal
| "tho clause in the Constitution respecting
the obligation of contracts has never httt
understood to restrict the general right 81
thc .ryi4latnrc to lcgislatc ON the subject ~
divorces" The same clause Is found IA on
own state Constitution, aud 10 also rontain'
the further clause IN reference to THIS par
tirnlar subject, that Divorces from th,
honds of mntrimony shall not hr granted bu
in eases provided for by law, 10y suit ia chan
rery." While this clause plainly prohimu
the Legislature from granting divorces IRON
The bonds Of matrimouN, It, Icy necessary
implication, authorizes II to proNide by law
iu what eases such divorces may be obtaine'
la the courts of chancctN.
Tho only remaining Inquiry is whether th'
| Legislature may authorize divorces To h'
| granted far causes happening before the pas
sage OF the act, aud which at the time 81
their occurrence were lawful and innocent
aud furnished no ground for such proceed
ipr Such legislation cannot ho too strongly
condemned as uuwiss, impolitic and unjust
Ii this were a criminal law, and undertoul
60 punish ms a crime an act which was indli
, ftrent at the time OF ITS performance, .
would lee void rs sIpat fdeio. But 1t cauno
be regarded as an act of that character; ans
10 mpairs the obligation Of no contract aus
diycsis no vested rights. Ii rs only obnoN
ious 10 the objection that IL rs wholly rctro
+ spcotiyc IN its operation. Such a statnt
, ipartakps I'M its character Of the mischief q
, An erna.t Clefo law. a. to all eases of crime
and penalties. and In matters relating 70 COZ
, tracts or property, violates every sound pul
/ ciplc
I Courts OF Justice always express the stronl
eat disapprobatiou of such legislation, au
. viii never he persuaded that the legislatut
/. intends to give a retrospective effect Ia u
enacuueuts. without the clear - and mos
= positive expression Of such purpose. bu
= where an act Is. like the present., retrospc'
4 tive only, aud purports 10 operate alone upo
. acts that have already passed, and has y
u prospective operation whatever, there y
] room lefi for construction, and c''urts q
= Obliged. however reluctantly, 10 give enc.
Il 60 the intention of tAe trameTse The consi
4 buttons Of some of the states wisely interut
! the passage of interpretive laws, excel
! those II a remedial character. ours contail
4 no such provision aud We thcrciore are ~
e al liberty to hold an act Of the Lc2lsiath
Ia he void merely because Of its rctrospc
i tive character. when no constitutional IT
a. visions have been violated.
= The iutcrlocntory derrce Il the court
q low disallawing the demurrer Wlll De amir
10 "A. and the canse remandesl. with leave
4 The appellant ID answer The hili WITHIN siA
days